2002 PLP 464 (CLC)

‑‑‑‑ Commencement of limitation‑‑‑Person who was well aware of the order passed against him, even if said order was void, could not sleep over his right and to choose his own time to challenge such order on the plea that the same was void‑‑‑Limitation for impugning such order at the best would commence from the time when it would come to the knowledge of the aggrieved party. Malik Azam Rasul for Petitioners. Sheikh Naveed Shahryar for Respondents. Date, of hearing: 25th September, 2000. Briefly stated the facts relevant for the purpose of disposal of the present petition are that the consolidation scheme of village Harrai was confirmed by the order of the Consolidation Officer, Tehsil Shahpur on 30‑6‑1985. Against the above order, respondents Nos.3 to 10 preferred an appeal, which was dismissed and the confirmation of the scheme attained finality. After lapse of about three years, said respondents submitted a miscellaneous application before the Consolidation Officer, contending that 9 Kanals and 15 Marlas less land have been given to them in the consolidation proceeding and hence Wandas be reallocated. This miscellaneous application was rejected by the Consolidation Officer vide order, dated 10‑9‑1988, holding that the scheme has been finally confirmed since long, therefore, the application cannot proceed, as being infructuous. Respondents Nos.3 and 4, re‑agitated the matter in appeal against the order of the Consolidation Officer, which appeal was dismissed by the Collector Consolidation vide order, dated 8‑10‑1988 holding the same to be barred by three years, one month and one day. Respondents Nos.3 to 10 challenged this order before the Additional Commissioner (Consolidation), who has allowed the revision petition, holding that prior to the consolidation, the respondents and the petitioners held their land jointly and during the consolidation operations, calculation of the shares was done incorrectly, resulting less land was allocated to the respondents and excess land was given to the petitioners, thus, the consolidation authority had committed an illegality while passing the consolidation order, which needs to be corrected; the time in filing the appeal was also condoned. Aggrieved, the petitioners, preferred a revision before the B.O.R. which has been dismissed vide order, dated 20‑2‑1991.

2. Learned counsel for the petitioners contends that consolidation scheme was finalized on 30‑6‑1985, which was challenged by the respondents in appeal which was dismissed, the second appeal against the same order filed after three years was not only incompetent, but also beyond time; the consolidation authorities had become functus officio; the dispute between the parties is covered by the principle of past and closed transaction.

3. On the other hand, learned counsel for the respondents states that in the revisional proceedings before the Additional Commissioner, petitioners had consented to surrendering the land and thus, the consent order could not be challenged, through the present petition. Besides time had been rightly condoned by the Additional Commissioner for the reason that the original consolidation proceedings, in which the entitlement of respondents Nos.3 to 10 was denied, was a void order and could always be corrected in the revision. In support of this contention, learned counsel has relied upon Noor Din's case PLD 1993 Lah. 2424 (sic) and Bashir‑ud‑Din and others' case PLD 1985 SC 220.

4. I have heard learned counsel for the parties. It is an admitted position on the record that respondents Nos.3 to 10, had challenged the order of the Consolidation Officer dated 30‑6‑1985 through an appeal, which was dismissed; they kept silent for about three years and thereafter, moved an application to the Consolidation Officer which was rejected. Instead of challenging this order in the proceedings, the original order, dated 30‑6‑1985, was re‑agitated through another appeal, therefore, the second appeal against the same order, dated 30‑6‑1985 was not competent in law. There is no plausible explanation given by the respondents as to why the matter was not further challenged when their first appeal was dismissed. Argument of learned counsel to: the respondents that as the question of entitlement of the contesting respondents was involved in the matter, and they were found to be entitled to 9 Kanals and 15 Marlas of land, therefore, the order of the Consolidation Officer, dated 30‑6‑1985, was void, against which there was no bar of limitation. I am afraid, this contention has no once. A person, who is well aware of the order passed against him, even if the order is void, cannot I sleep over his right and to choose his own time to challenge such order on the plea that the same is void. The limitation for impugning such order at the best would commence from the time, when it comes to the knowledge of the aggrieved party. Here the respondents were well aware of the order of the Consolidation Officer, dated 30‑6‑1985 and they even preferred an appeal against that order, which was dismissed, therefore, even if as argued by the learned counsel for the respondents, the original order, dated 30‑6‑1985, was void, the subsequent appeal of the respondents was barred by time. Moreover, the learned counsel for the respondents has failed to satisfy this Court, that the second appeal, out of which the revisional order was passed by the Additional Commissioner, Consolidation, was competent. The earlier appeal of the respondents was dismissed, they did not opt to challenge this order, therefore, under the principle of past and closed transaction, the matter could not, be re‑agitated through a fresh appeal. The Additional Commissioner (Consolidation), Sargodha illegally entertained the revision of the respondents and allowed the same, when as mentioned above, no plausible explanation for the delay in filing the fresh appeal was made out and such appeal was also incompetent. Moreover, consolidation authorities after ‑finalization of the consolidation scheme had become functus officio and the matter could not be re‑agitated through miscellaneous application or through fresh appeal. The judgments cited by the learned counsel for the respondents Nos.3 to 10 are distinguishable on their own facts and have no application to the present matter.

5. The last submission of the learned counsel for the respondents that the petitioners had consented to the order of the Additional Commissioner, therefore, they are estopped by their own conduct to bring this petition, is not well founded, because the learned counsel is trying to imply the consent of the petitioner, which is not expressly incorporated in the said order. It seems that during the course of hearing of the revision, the Additional Commissioner, perhaps questioned the petitioners that in case, the matter is decided against them, which land they would like to surrender and thus, they did apprise him about the surrender of specific land. But in no way, this order can be deemed to be consent order, particularly, for the reason that the Additional Commissioner, has decided the case by giving his own reason and not on the basis of express consent of the parties. In the light of above, by allowing this petition, the orders impugned in this petition are hereby set aside. H.B.T./A‑328/L Petition allowed.