P L D 1971 Karachi 666 (PLP)

MUHAMMAD HAYAT JUNEJO, J.--‑This petition under Article 98 of the Constitution has arisen in the following circumstances. A strip of "Bhada" land measuring 58.15 acres situated in Deh Mari, Taluka Moro, District Nawabshah was offered for sale by the Barrage Mukhtiarkar. The petitioner accepted this offer and the grant was sanctioned in his favour on 5‑9‑1959 by the Colonization Officer. Respondents Nos. 3 and 4 challenged this grant by filing appeals before the Additional Commissioner, Khairpur (respondent No. 2) on 16‑9‑1961 and 8‑10‑62 respectively. In the appeal filed by respondent No. 3 it was stated by him that he was under the impression that the land under dispute had not been disposed of as yet as "the Barrage Authorities kept him under false pretext" and that the petitioner came to know about it only in November 1960 when the `Haris' came on the land for the first time to cultivate it and thereafter he immediately submitted his appeal. It was, accordingly, asserted that the appeal was in time as the respondent No. 3 had "received the decision on 16‑9‑1961". The appeal filed by respondent No. 4, was, however, accom panied by an application for condonation of delay on the ground that the respondent was trying to get the required copies which he could not get in spite of waiting long, as the entire record had been destroyed at the instigation of the petitioner who was an influential person. Both these appeals were fixed for hearing on 28‑4‑1966 and the notice for the hearing thereof was received by the petitioner on 21‑4‑1966. On the day of hearing the petitioner sent a telegram that as his car had broken down on the way, the hearing should be adjourned. The petitioner, however, reached the Court of the Additional Commissioner and as the order of respondent No. 2 itself shows, he was heard at length after which the appeals were allowed by the Additional Commissioner, who ordered that the "disputed Bnada land of 5 8.13 acres may be published through schedules and Union Councils;" and that all the `Mohagdars' may be consulted and given notice and after observing all these formalities, the disputed land may be disposed of afresh on merits. The petitioner challenged this order dated 28‑4‑1966 in revision which was also dismissed by the order dated 26‑10‑1966 of the Member, Board of Revenue.

2. Mr. Khalid M. Ishaque, the learned counsel for the petitioner has contended that the appeals filed by respon dents Nos. 3 and 4 before the Commissioner were both time barred as these were filed after the period of limitation prescribed under section 205 of the Sind Land Revenue Code. The learned counsel contended that the respondent No. 2 had allowed these time‑barred appeals without considering the question of limita tion and consequently this order of the Additional Commissioner as well as the order of the Member, Board of Revenue confirming this order in revision were both illegal. Mr. Khalid M. Ishaque relied very strongly on Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan and others (PLD 1965 SC 269), wherein it was held that the mere mention of the date of the order revised, in the order passed in revision, does not simply that Claims Commissioner had applied his mind to question of extension of time. This authority, however, does not help the learned counsel as it does not lay down that there must be an express finding as to the condonation of delay. On the contrary their. Lordships have recognized that even an implied finding to that effect is sufficient if it can be seen from the order itself that the Additional Commissioner had applied his mind to the question of extension of time. In other words, this has to be decided on the facts of each particular case.

3. In the matter before us both the appeals were admitted under section 206 of the Sind Land Revenue Code which reads as follows: "Any appeal under this chapter may be admitted after the period of limitation prescribed therefore, when the appellant satisfies the officer or the Provincial Government to whom or to which he appeals, that he had sufficient cause for not presenting the appeal within such period." The very language in which this section is couched gives the impression that the question of limitation has to be considered at the time of admission and not at the time of regular hearing of the appeals. The appeals having been admitted it was open to the petitioner to raise an objection as to limitation at the time of hearing when he appeared before the Additional Commissioner. Although the order of the Additional Commis sioner shows that the petitioner was heard at length, there is nothing to indicate therein that he raised any objection on the ground of limitation. Surely, if he had urged this, it would have been discussed by the respondent No.

2. In the present case neither of the respondents had concealed the fact that the appeal was being filed beyond the prescribed period of limitation. On the contrary, the respondent No. 4 had filed an application for condonation of delay while the respondent No. 3 had given facts to show as to how the appeal was within time. It is stated in paragraph 5 of the counter‑affidavit filed by respondent No. 4 that the Appellate Authority had in full cognizance of this fact made enquiries from the subordinate Revenue Authorities and after his full satisfaction that the delay was caused by sufficient cause, he admitted the appeal to regular hearing, which was the end of the matter as far as the present petitioner's right to challenge the same was concerned. The fact that enquiries were made from the subordinate Revenue Authorities in this respect has not been specifically denied in the affidavit in rejoinder filed by the petitioner. We, therefore, find nothing, on record to persuade us to hold to the contrary, and consequently hold that the learned Additional Commissioner had condoned the delay at the time of the admission of the appeal g on the facts and circumstances of this case which he was fully entitled to do. Such an order is discretionary as pointed out by their Lordships of the Supreme Court in the case of Mumtaz' Khan v. Chief Settlement and Rehabilitation Commissioner and another (P L D 1966 S C 276) and cannot be challenged in this Constitutional petition.

4. What is, however, more important in this case is the fact that we are concerned only with the final order passed by the Member, Board of Revenue and if this order is valid al orders passed at intermediate stages become immaterial and of no consequence. Reference in this connection may be mad to the case of Muhammad Farid Jan v. Colonization Officer, Sukkur and others (PLD 1965 SC 399), wherein a contention similar to the one advanced by Mr. Khalid Ishaque was repelled by their Lordships of the Supreme Court. In that case although their Lordships came to the conclusion that the order purporting to be passed in an appeal by the Revenue Officer had no legal basis and consequently even though the order passed in Second Appeal by the Additional Commissioner would appear to be a futile proceeding. It was held that this by no means concluded the matter as even though the intermediate appellate links were weak the Court was concerned only with the final order passed in revision. In the words of S. A. Rahman, J. (as his Lordship then was): "Even if the two appellate orders suffered from an infirmity, the order passed in revision by the learned Member, Board of Revenue, was not open to any such exception on the legal plane. By section 211 of the Act, the Board of Revenue possess power to revise an order passed by any subordinate officer and question of legality as well as propriety of such decision would be open in revision before the Board. The order of the Board was passed after full hearing of both parties on the merits of the case. Even if therefore the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 of the Act, could not be successfully assailed as illegal."

5. A bare reading of the order dated 26‑10‑1966 of the Member, Board of Revenue would show that the learned Member had carefully dealt with all the objections as well as contentions of the petitioner. Dealing with his plea of the appeals being barred by limitation, the learned Member, Board of Revenue, observed as follows:‑ "The learned counsel for the petitioner reiterated that his client recorded offer for this Bhada land on 10‑6‑1958 and the offer was sanctioned by the Colonization Officer on 5‑9‑59, after lapse of about 15 months, that the respondents had all the time to record their counter‑offers during this period of 15 months and that from their conduct they waited until the petitioner had incurred heavy expenditure on the deve lopment of land and then filed time‑barred appeals. He added that the learned Additional Commissioner accepted these time‑barred appeals without condoning the delay and he appears to have based his findings on mere bias and prejudice against the petitioner for the simple reasons that the petitioner's son happened to be an Assistant Engineer in the Irrigation Department. I have seen the lower Court file which contain; a number of applications from one Muhammad Fazul Bughie and Muhammad' Parial, dating as far as 8‑10‑1959. It is, therefore, clear that before the petitioner's offer was sanctioned by the C. O. on 3‑9‑1959, there was demand from other local land‑owners and residents of the deh for this very land. One respondent's appeal before the Additional Commissioner was filed on 8‑10‑1962 and there was application under section 5 of the Limitation Act, containing an allegation that the entire record was destroyed at the instigation of the petitioner who is an influential person. Thus I hold that the learned Additional Commissioner condoned the delay on suffi cient grounds mentioned in his impugned order though he has not specifically said so, in so many words."

6. Similarly as regards the contention of the petitioner that he had no adequate opportunity of hearing before the Appellate Authority. The observations of the learned Member, Board of Revenue were as follows:‑ "The learned counsel for the petitioner laid the great stress on ground No. 2 of the grounds of revision. the excuse of failure of transport is not valid ground for adjournment of hearing. I verified from the record of lower Court and found that petitioner made no representation for adjournment of the case except an alleged telegram (which is not on record) sent by him to the Additional Commissioner requesting adjournment on the ground of failure of transport. The petitioner was served notice 7 days before the date of hearing by the learned Additional Commissioner and I feel that 7 days' period is quite sufficient for engaging a counsel. The learned counsel states that petitioner reached in the Court of the learned Additional Commissioner at 1 o'clock when the appeal against him was in the process of being heard. Mr. Shafiuadin Pleader who is present today with Mr. Noor Muhammad Bughio counsel for respondent Muhammad Daud stated that he was present in the Court of the learned Additional Commissioner on 28‑4‑1962 and that the petitioner did not ask for adjournment for engaging a counsel. Thus there is an oral statement from the learned counsel for the petitioner against the oral statement of the learned counsel for the respondent. In the circumstances I hold that no application was made by the petitioner for adjournment of the case for engaging a counsel."

7. These observations would undoubtedly show that the Member, Board of Revenue, came to the conclusion that the delay was in fact condoned by the Additional Commissioner and that the petitioner had been given an adequate and reasonable opportunity of being heard. What is more, the learned Member himself examined all the relevant considerations and came to the conclusion that there were circumstances justifying the condonation of delay. He also examined the merits of the case and recorded his conclusions thus :‑ "I have given my full consideration to the different aspects of this case. Admittedly petitioner is a ‑ retired Pound Munshi residing in Moro Town, about 5 miles away from the disputed land. He is not a resident of this deh where the land is situated. Admittedly he is not a cultivator by profession. Petitioner admitted before me that his son was Assistant Engineer in this very circle some two years prior to the date of grant. It is noteworthy that in disposal of Bhada land no‑objection certificate of the Executive Engineer of Irrigation Department is necessary. It is clear from the lower Courts' record that even at the crucial time some of the respondents had sent telegrams and applications asking for the disputed land on Mohag right, but no order was passed in this behalf. It is correct that the Mohag right is limited to only awkward pieces of land up to 4 acres, but in this case the disputed Bhada land could have been split up in small pieces and offered to Mohagdars. The learned counsel for Muhammad Daud contended that the respondents being local land‑owners and residents of the deh with Mohag rights were not afforded reasonable oppor tunity for recording counter‑offers. This allegation is quite correct." We have not been shown anything to the contrary on record to hold that these reasons are not sound.

8. In the result we find no force in this petition. It is accordingly dismissed with costs. A. E. Petition dismissed.