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P L D 1997 Peshawar 30

 

Before Sardar Muhammad Raza, J

 

Raja JAWAID and 4 others‑‑‑Appellants

 

versus

 

COLLECTOR, LAND ACQUISITION, KHANPUR DAM, HARIPUR‑‑‑Respondent

 

Regular First Appeal No.32 of 1996, decided on 18th January, 1997.

 

Malik Fazal Hussain for Appellants.

 

ORDER

 

Raja Jawaid son of Raja Basharat‑ul‑Mulk and four others of Khanpur, Tehsil and District Haripur, in their personal capacity as well as representatives of numerous others within the contemplation of Order 1, Rule 8, C.P.C. had filed an objection petition under section 30 of the Land Acquisition Act which, on 3‑6‑1996 had been dismissed by the Additional District Judge, Haripur in his capacity as Court of Reference. The objectors have filed this regular first appeal under section 54 of the Land Acquisition Act.

 

2. The brief and relevant background of the case is that the Government of N.‑W.F.P. had acquired properties of divergent classifications in Khanpur for the construction of Khanpur Dam Project. The present appeal pertains to numerous shops owned by the appellants, the loss of earnings whereof were awarded to the tenants and not the owners. The owners claimed that they were given compensation of their ownership rights in the shops but no compensation had been awarded with regard to the loss of rent per month which the owners had been receiving from the tenants and which for all practical purposes was a solid earning for all times to come. The learned Judge was of the view that in the present circumstances the loss of earning was’ the loss of business which was run by the tenants; hence this appeal.

 

3. This is a regular first appeal and hence there was nothing serious in the way of its admission but the most unavoidable circumstance is that of limitation regarding the filing of appeal. A period of 90 days is provided for filing an appeal before the High Court but the instant appeal distinctly seems time‑barred by more than two months.

 

4. The judgment by the Additional District Judge, Haripur was announced on 3‑4‑1996. Application for the attested copies thereof was filed on the very next day on 4‑6‑1996. The copies were provided to the appellants on 28‑7‑1996 and hence the present appeal was to be filed at the most on 27‑10‑1996. The present appeal was filed on 30‑12‑1996. i.e. with a delay of 63 days after the expiry of the period of limitation. This is hopelessly time‑barred and requires to be dismissed forthwith.

 

5. Learned counsel for the appellants, with reference to his application under section 5 of the Limitation Act argued that the delay caused in the instant case may be condoned firstly on the ground mentioned in the petition (C.M. No.218/96) and secondly, on the ground that the impugned judgment of Additional District Judge being void, without jurisdiction and a nullity in law requires to be ignored altogether and if challenged, it cannot be obstructed and hindered by the provisions of Limitation Act. The learned counsel was of the view that the provisions of section 5 of the Limitation Act have not been made applicable to the proceedings under Land Acquisition Act and hence the limitation should be ignored altogether when the impugned order is void, without jurisdiction and a nullity in law.

 

6. Coming to the factual ground of condonation the appellants allege that the certified copy of the judgment having been obtained on 28‑7‑1996, was handed over to the counsel for filing appeal but the counsel fell ill and yesterday i.e. 29‑12‑1996, the appellants came to know that the counsel had not filed the appeal. This is not at all sufficient ground for condoning the delay because not one but five appellants had been there to look after their interest and were not supposed to have had forgotten the matter after handing over the copies to the counsel. Simply handing over the copies to the counsel is not the first and the last step towards the filing of an appeal but various affidavits are to be signed by the appellants or their attorneys. The excuse put forward is so weak and frivolous that even the name of such counsel is not given so that it could ever be verified from him one way or the other. I hold that there is not even insufficient cause for the condonation of delay, muchless sufficient.

 

7. With regard to the second legal ground that section 5 of the Limitation Act is not applicable to the Land Acquisition Act and hence if the impugned order is a nullity, the very applicability of Limitation Act should be totally ignored; I hold altogether a different view from the assertion of the learned counsel. Limitation Act bars the remedy in different cases when the relief is sought after the specified time for bringing about the claim. Section 5 of the Limitation Act is an exception to the aforesaid bar and provides for the admission of claims even after the period of limitation provided the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the, appeal or making the application within such period. This exception to the law of limitation is for the benefit of the appellant or applicant who was dorment but for sufficient reasons. Had this section been not a part of the Limitation Act, the very idea of condonation would have been alien to the law of limitation and if some special law fails to make section 5 of the Limitation Act applicable to it, to my mind, it avoids to give the concession of condonation to the appellants or applicants thereof. If the learned counsel says that section 5 of the Limitation Act does not apply to the Land Acquisition Act, it means that he is not entitled to the benefit of any condonation. I hold so and refuse condonation on this principle as well.

 

8. The last point of argument was that the very idea of limitation is not attracted when the order impugned is void, without jurisdiction and a nullity in law. I persuaded the learned counsel to convince me that the impugned judgment passed by the Court of reference under the Land Acquisition Act was void, without jurisdiction and hence a nullity in law.

 

9. The learned counsel alleged that the acquisition Judge was supposed to have earnestly differentiated between the loss of business that rests with the tenant and loss of earnings that rests with the owner and that, in not making such differentiation and not granting loss of earnings to the owners, the learned Judge had acted without jurisdiction. That no limitation should fall in the way of the appellants while challenging such an order without jurisdiction.

 

10. It is often held and observed that an order which is void in law and passed without jurisdiction should be ignored altogether. If this principle’ is followed then the present appellants should ignore the impugned judgment altogether but the fact remains that in order to be set aside and in order to provide relief to the appellants it has to be challenged. Obviously, it can be challenged only under section 54 of the Land Acquisition Act to which the phenomenon of condonation is not attracted and for which the appeal must under all circumstances be filed within 90 days. If not so filed it requires to be dismissed downright.

 

11. Learned counsel for the appellants referred me to Hussain Bakhsh and others v. Settlement Commissioner PLD 1969 Lah. 1039‑b in support of his argument that bar of limitation cannot be raised when the impugned order is void and without jurisdiction. The above facts are not similar to the facts of the present case because disputed therein was a void order owing to the facts that the property, with reference to Settlement laws, was occupied by refugee from Jammu and Kashmir State and could not be transferred to a non‑Jammu and Kashmir refugee in view of the bar contained in paragraphs 19 and 21 of the Settlement Scheme IV.

 

12. Next relied upon was the case of Said Muhammad Alam v. Syed Mehdi Hussain PLD 1970 Lah. 6 wherein it was held that where order appealed against is found to be a nullity the appellate authority can entertain and decide the same on merits even if the appeal is time‑barred. No doubt, despite the absence of idea of condonation under section 5 of the Limitation Act, a time‑barred appeal can be entertained and heard by the appellate authority but provided only, when the order under appeal is a nullity. The foremost question that arises for consideration in the instant case and in every such situation would be as to what is a null and void order, passed without jurisdiction. In Muhammad Sualleh’s case PLD 1964 SC 97 the Supreme Court had held the difference between a total lack of jurisdiction and an irregularity to be one of degrees and a matter of difficulty. Their Lordships held that a reference to the provisions of section 115 of the C.P.C. would show that every irregularity or even illegality in the exercise of jurisdiction does not render the order void and without jurisdiction.

 

13. Identical is a situation in the instant case where difference is rather visible. The Additional District Judge had every pecuniary as well as territorial jurisdiction in the matter. He being the Court of reference had full authority to answer the reference in the light of evidence being brought before him and thus any order passed by him was neither coram non judice nor suffered from any defect of inherent jurisdiction. Simply because he failed to grant a relief or because he refused to grant a relief either in the light of evidence or in view of the interpretation that he resorted to, it does not mean that the order was without jurisdiction. One could at the most term it to be either irregular or even illegal but never without jurisdiction. It is for such irregular and illegal orders that the right of appeal is provided in law. Had the order been coram non judice or without jurisdiction altogether, the petitioners could have ignored the same but here they cannot do by ignoring. It is simply an irregular order, as challenged by the appellants or may be illegal but not without jurisdiction. While preferring an appeal against such order passed with jurisdiction, the provisions of Limitation Act cannot be avoided.

 

14. The instant appeal is hopelessly time‑barred and is hereby dismissed in limine.

 

A.A./2081/P Appeal dismissed.

 

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