Order Sheet

Order Sheet.

HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.

C.P.NO.D-81 OF 2008.

Miral Khan. . . . .Versus. . . . Province of Sindh & Ors.

Date Order with signature of Judge

Date of hearing: 11.5.2010.

Mr. Bhim Raj R. Mullani, Advocate for the petitioner.

Mr. Allah Bachayo Soomro, Additional A.G.

Mr. Pirbhulal-U-Goklani, Advocate for the respondents No.5 and 6.

. . . .

Through instant petition, the petitioner has impugned order dated 07.1.2008, passed by the learned Member, Board of Revenue Sindh, in case No.S-Review-81 of 2001, whereby the order passed in Revision Application No.SRO-R-550/1999, in favour of the petitioner, has been recalled.

2. Brief facts of the case leading to the instant petition are that the agricultural land bearing No.S-202/1 to 4 area16-00 acres situated in Deh Girari No.1, Taluka Shaheed Fazil Rahu, District Badin, being Non-Qabooli land was granted by the Defunct Revenue Officer Kotri Barrage, Hyderabad, i.e. respondent No.4, in favour of the respondents No.5 and 6 namely Ramzan S/o Suleman Chalko and Dod S/o Suleman Cahlko in the year 1998-99. It appears that the amount of the instalments has fully been paid, however, due to dispute over such allotment by the petitioner T.O. Form has not yet been issued. Such land was granted to the respondents No.5 and 6 pursuant to Land Grant Policy of 1989, by the Government of Sindh, Land Utilization Department in exercise of powers conferred under sub-section(2) of section 10 of the Colonization of Government Lands Act 1912 and supersession of previous Notification issued in this behalf whereby the statement of conditions for the grant of estate land to the haris, small khatedars and Muhagdars in Kotri and Sukkur Barrage vide Notification dated 7^th December 1989 was issued. The petitioner was not satisfied with such allotment of the land to the respondents no.5 and 6, as according to the petitioner the respondents no.5 and 6 were already owners of lands, hence they did not fall within the definition of the landless hari under the Land Grant Policy of 1989. An appeal under Section 161 of Sindh Land Revenue Act 1967 before the Defunct Additional Commissioner-II, Hyderabad Division was filed by the petitioner, which was dismissed vide order dated 29.11.1999 (order is available as Annexure-E at page-47 of the file). The petitioner being aggrieved by such order filed a revision application under section 164 of Sindh Land Revenue Act 1967 before the Member (Judicial) Board of Revenue Sindh, Hyderabad, which was allowed in favour of the petitioner vide order dated 23.1.2001. Being aggrieved by such order respondents No.5 and 6 filed a Review Petition under section 8 of the Sindh Land Revenue Act 1967, before the Member (Judicial) Board of Revenue, who vide impugned order dated 7.1.2008 has allowed the review petition and decided the matter in favour of the respondents No.5 and 6.

3. It is, inter alia, contended by the learned counsel for the petitioner that the impugned order is without jurisdiction and of no legal effect. It is further argued by the learned counsel that the very grant in favour of the respondents No.5 and 6 was also illegal as the respondents No.5 and 6 were already owners of substantial agricultural land, hence they did not qualify to be landless hari as envisaged under the Land Grant Policy 1989. Learned counsel has also argued that the review petition was hopelessly time barred, as the same was filed after the expiry of 90 days provided for filing review application under Section 8 of the Sindh Land Revenue Act 1967.

4. Conversely, the learned counsel for the respondents No.5 and 6 has referred to the Form-A issued in favour of the respondents No.5 and 6 and submitted that the land was legally allotted in favour of the respondents No.5 and 6 under the Land Grant Policy of 1989 and the payment thereof was also made by them, hence the respondents have the valid title over the subject land. It is contended that the petitioner has no locus standi to claim such land, more particularly, in view of the fact that the petitioner is already owner of 16 acres of land, which fact has not been denied by the petitioner. In this regard learned counsel for the respondents has referred to Form-A, issued in favour of petitioner, in respect of survey No.1627 Deh Jhole-6. Learned counsel has referred to para-4 of the order passed by the Additional Commissioner No.II, Hyderabad Division, on 29.11.1999, to show that the petitioner did not deny the previous holding of 16 acres land in Deh Jhole06. He has further contended that the order in revision application was obtained by fraud and misrepresentation by the petitioner, as on the date when the order was passed the respondents were not in attendance. It is further contended that the petitioner after having filed a false affidavit stating therein that he did not previously own 16 acres of land in Deh Jhole-6 and claimed priority over the land, hence obtained the order in his favour, which has rightly been recalled and set aside by the learned Member (Judicial) Board of Revenue Sindh through impugned order. Learned counsel argued that the impugned order is proper and legal, hence does not require any interference.

5. We have heard the learned counsel for the parties and perused the record. It appears that the impugned order was passed by the Member (Judicial) Board of Revenue while exercising powers under section 8 of Sindh Land Revenue Act 1967, on review application, which was filed beyond the prescribed limitation period of 90 days. However, on perusal of the order passed in appeal dated 29.11.1999 it appears that the said appeal was dismissed on merits as well as on the ground of being time barred. Similarly, on perusal of the order dated 23.1.2001, passed in revision it appears that the same has been decided in favour of the petitioner on the basis of an affidavit sworn by the petitioner to the effect that the petitioner does not hold 16 acres of land in Deh Jhole-6, whereas on perusal of para-4 of the order passed in appeal it appears that the petitioner did not deny the ownership of 16 acres of land in Deh Jhole-6 and also acknowledged Form-A in respect of such land. Such finding in appeal is reproduced herein-below for convenience:

"The respondents have argued that they are the haris of the land and the land has been granted after determination of their eligibility in open katchery. They further argued that appellant already holds B.No.1627 area 16-00 acres deh Jhole-6 which was granted to him during the year 1982 and as such he was not eligible for grant of the land. They produced a copy of A-Form of grant of the land to the appellant. The advocate for the appellant has also not denied the previous holding of the land of the appellant."

Such statement is further fortified from Form-A No.2369 dated 21.2.1983 issued in favour of the petitioner for an area of 16 acres in S.No.2627 Jhole-6.

6. For the foregoing facts it appears that the order dated 23.1.2001 in Revision No.SROR-550 of 1999 was obtained by misrepresentation of facts by taking different stance from the admitted facts whereby the ownership/possession of 16 acres of land was also admitted. Under the circumstances we are of the opinion that while passing the impugned order dated 07.01.2008, the Member (Judicial) Board of Revenue Sindh, Hyderabad has rightly exercised the powers conferred upon him under section 8 of the Board of Revenue Act 1957, whereby the order obtained on misrepresentation of facts has been recalled and set aside.

7. As to the objection of the petitioner with regard to the limitation, which otherwise appears to have been condoned by the Member (J) Board of Revenue on account of the health ground of the respondents, however, we are of the view that since the revision application was based on misrepresentation of facts hence any order based on such misrepresentation was a void order which is not sustainable in facts and law and since no limitation runs against a void order we consider the review application No.S-Review-81 of 2001 to be within time, which otherwise is based on admitted facts available on record and on proper application of law. We are fortified in our view by a judgment of apex Court reported as GOVERNMENT OF BALOCHISTAN v. GHULAM MUAHAMMAD (2001 S C M R 19), wherein the impugned order was declared as a void order and in view of such finding the delay in filing the appeal was condoned. We would also like to observe that the petitioner has not approached this Court with clean hands in view of the contradictory statement on record, hence disentitled himself from claiming any discretionary relief in writ jurisdiction. Reference in this regard can be made to case of MUHAMMAD FIAZ KHAN v. AJMER KHAN reported as 2010 S C M R 105, wherein the Honourable apex Court has held that “He who seeks equity must come with clean hands.”

8. Under the peculiar facts and circumstances of this case, we are of the view that the instant petition has no merits, which is accordingly dismissed alongwith the listed application with no orders as to costs.

JUDGE