1. This petition seeks to challenge the order of Settlement Commissioner West Pakistan, Lahore, dated 25-7-1969 whereby P. T. D. Issued jointly in the name of Aqil Ahmed (deceased petitioner) and his old mother Kulsoom Fatma, dated 30-4-1962 in respect of Property No. A/117-99/1 belonging to Kishenchand evacuee situated at Hirabad, Hyderabad had been cancelled and the property had been ordered to be transferred to respondent No. 1.
2. The facts briefly stated are as under:------- Mirza Ahmed Baig Ghazi, respondent No. 1 who is a non-claimant misplaced person was serving as Executive Engineer (Roads Division) at Hyderabad under the West Pakistan Government and was in possession of the house in question which had been allotted to the Public Works Department.
3. He was in possession 'of the residential accommodation in his official capacity with effect from 16- 5-1959. On 31-7-1959 he filed N. C. H. Form as Govern--ment servant for the transfer of the house. It is admitted position that in spite of the fact that he was not in possession prior to the target date 20-12-1958 as mentioned in Memo. No. 805-P-Reh./59, dated 19th February, 1959, the house was ordered to be transferred to him on his N. C. H. Form.
4. A Press Note dated 6th September, 1960, was however issued which reads as under: "The Order issued by the Central Government in the Ministry of Rehabi--litation and Works and published in Gazette of Pakistan Extraordinary on the 3rd August, 1960, is reproduced below:?
5. No. F. 3(3)/60-S1.--In exercise of the power conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensa--tion and Rehabilitation) Act, 1958 (XXVIH of 1958) the Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house in pursuance of an order referred to in the said clause but is in possession of a house in pursuance of an order passed by a competent authority after the twentieth day of December, 1958, but not later than the date of this order shall, for the purposes of the aforesaid Act be deemed to be in possession thereof if such claimant, non- claimant displaced person or local is in undisputed occupation of the house and no other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by a competent authority."
6. On 30-4-1962 a P. T. D. In respect of the house in question was issued jointly in favour of the deceased-petitioner and his mother. The respondent No. 1 filed a Review Application before the Settlement Commissioner, Hyderabad seeking review of order dated 21-4-1962 which was rejected by order dated 17-6-196.1. The aforesaid Review Application, as the order dated 17-6-1964 mentions, was admitted on the ground that respondent No. 1's original petition for Revision of Additional Settlement Commissioner's order was summarily dismissed on 21-4-1962 when a chance of hearing should have been given to him and it wits observed that his main case was that the need of allotment fur purpose of entitlement to transfer was subsequently dispensed with by an amendment to the definition of the word `possession' in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as tire Act), and that he had become entitled to such transfer by virtue of his undisputed possession. The Settle--ment Commissioner however was of the opinion that since the P. T. D. Had been issued in favour of the deceased petitioner and his mother and even under rules 6 and 7 of the Permanent Transfer Rules such document could be cancelled only on the ground of fraud, misrepresentation or contravention of the relevant rules, and since no such ground existed against the deceased --petitioner and his mother, and the respondent had failed to prove in time either the allotment or his undisputed possession since before 20-12-1968 the house had been disposed of as substitute in lieu of result of lottery, lie had no eau for revenue. The respondent No. 1 then filed a Constitutional Petition No. 616/1964, which wits allowed on 14-4-1966 by a Division Bench of this Court, and the case was remanded to the Settlement Commissioner for re-hearing. Incidentally, in the judgment it was observed that tire contention regarding validity of earlier P. T. O. Issued to the respondent No. 1 on 26-11-1959 was invalid since he was not in possession of the house in dispute before 20-12-1958; and that in the circumstances he seas not entitled to transfer of the house under the Schedule to the Act, and no notice for cancellation of a void transfer was necessary. It was further held that respondent No. 1 was entitled to urge before the Settlement Commissioner his case on the basis of Memo. Dated 12- 1-1960 in respect of inter alia houses allotted by competent authority on caretaker basis after 20th December, 1958. It was further observed that the house being one of those which is mentioned in para. 3 of the Memo. Should riot have been included for purpose of transferring it to lieu of earmarking proceeding. With regard to the case of deceased-petitioner and his mother, it was observed that same was not covered by the Press Note, dated Ali April, 1960, and they were not entitled to tire, transfer of tire house in dispute because their compensation books did not fully cover the value of the house in dispute, and it wits open to doubt that the compensation books of the claimants could be taken into consideration for taking advantage of the concession. With regard to Press Note dated 20-8-1960 (page 159 of the Government Settlement Manual 1960 Edition) whereby the Central Govern--ment had modified the earlier Press Note dated 7-4-1960, it was held that the same was not applicable to the case of the deceased-petitioner and his mother as it had not been given retrospective effect and could not affect the transfer made in May, 1960. It was, therefore, further hold that it could not possibly be held that the house in question was not available for transfer to September, 1960, when respondent No. 1 had applied for its transfer under Notification dated 3-8-1960. It was, therefore, further observed that it was incumbent upon the Settlement Authorities to consider the claim of respondent No. 1 and to decide whether lie was entitled to get the benefit of Notification dated 3rd August, 1960. The concluding part of the judgment ~of the D. B. In Writ Petition No. 616/1964 reads as under:------- "Since the Settlement Authorities have acted without lawful authority and not in accordance with law we would quash the impugned orders and direct them to examine the claim of the petitioner in the light of the Notification dated 3rd August, 1960. It will be open to them to consider whether the petitioner was occupying the premises in dispute in pursuance of the order passed by a competent authority after 20 December 1958,and whether was entitled to the transfer of the property in dispute on that basis. In case the Settle--ment Commissioner comes to the conclusion that he is entitled to possession of the house in dispute the transfer of the house in dispute in favour of respondents Nos. 4 and 5 will stand cancelled; otherwise the transfer in their favour will remain operative."
7. After remand, the matter was decided by the impugned order dated 25-7-1969 by Sardar Hidayatullah Khan Mokal, the Settlement Commissioner, West Pakistan, Lahore, against which the instant petition has been filed.
8. I have heard Mr. Akhtar Mahmood, the learned counsel for the petitioners and Mr. Ismail Munshi, the learned counsel for respondent No. 1.
9. The main contentions raised ors behalf of the petitioner are as under:-------
(1) That since the matter was sent back to the Settlement Commissioner; Hyderabad for disposal the Settlement Commissioner, West Pakistan, Lahore had no jurisdiction to pass the impugned order.
(2) That in the Constitutional Petition No. 616/64 respondent No. I did not challenge the final order of Settlement Commissioner dated 7-7-1960 but challenged only two orders passed by Settlement Commis--sioner, namely, tile one on 20-4-1962, and the other on 20-6-1974, and after that the deceased-petitioner as well as his mother were in East Pakistan because of service of deceased- petitioner and, therefore, it was not possible for him to attend the petition personally. It is, therefore, further argued that the points raised by him in his objections and counter-affidavits could not be placed before the Court at the tune of final hearing and do not find mention in the judgment delivered by the learned Division Bench.
(3) That the question about the respondent No. 1 being entitled under Notification dated 3-8-1960 was not properly contested as the deceased-- petitioner was not represented by an Advocate before the D. B.; and similarly, the question of transfer in favour of deceased-petitioner 4 and his mother, which was considered in paras. 6, 7 and. 8 of the order of D. B., and the finding that the transfer was invalid on consideration of Press Note dated 7-4-1960 was arrived at because the case of the deceased-petitioner was not properly stated before the Court.
(4) That the finding in the impugned order that respondent No. 1 was in possession of the house in pursuance of allotment made in his favour by his Department is arbitrary as no discussion is available in the impugned order regarding the existence of any allotment or other order from any competent authority issued in favour of respondent prior to 3-8-1960, and the certificate dated 30- 11-1962 should not have been considered sufficient.
10. With regard to contention No. 1, it is quite clear from the perusal of the impugned order of the learned Settlement Commissioner that the case was transferred to him legally and properly. The relevant para. At page 3 of the impugned order reads as under: "Since Mr. S. M. Azhar who at present is Settlement Commissioner at Hyderabad Division had passed an order in this very case as Additional Settlement Commissioner, this case was transferred to me in the capacity of Settlement and Rehabilitation Commissioner, West Pakistan by the Chief Settlement and Rehabilitation Commissioner, vide Memo. No. 1022/Reader/68, dated 28- 12-1968."th The explanation given should have been considered satisfactory and the only objection at present would appear to be that the copy of the Memo. Of the Chief Settlement and Rehabilitation Commissioner has not been made avail--able. The objection would not appear to be reasonable as the aforesaid memo. Must be on the record of the Settlement and Rehabilitation Commis-- sioner, West Pakistan, and the very fact that the explanation is given in the impugned order is, for all legal purposes, satisfactory and proper.
11. With regard to contention No. 2, it is obvious that the case of the respondent No. 1 was based on Notification dated 3-8-1960 and, therefore, the fact that he did not challenge orders previously made in different context cannot be taken as detracting from his case which he put in his application dated 20-9-1960. With regard to the further contention that the deceased---petitioner was not properly represented before the High Court in Writ Petition No. 616/1964 or that the judgment was in the nature of an ex parte decision, a perusal of the record would show that the deceased-petitioner who was respondent No. 4, besides addressing a number of letters had filed "a petition on behalf of respondent No. 4" which is dated 6-2-1965. There is affidavit in opposition dated 1-3-1965, a supplementary affidavit in opposition dated 15-3-1965. On receiving notice from the Court the petitioner as respondent No: 4 submitted affidavit in opposition dated 1-1-1966 followed by an affidavit in opposition to the amended petition which is dated 2-2-1966. There are also representations and requests by correspondence, including a letter dated 29-2-1966 addressed by the deceased-- petitioner as respondent No. 4 informing the Court that being a heart patient and incapable of affording a counsel at Karachi he was not in a position to be either present in person or to be represented through a lawyer. In view the material on record already referred to, the decision of the D. B. Cannot be considered to be ex parte. It is also clear from a perusal of the order that all points raised had been taken note of and discussed and also that Mr. Wasim Rizvi, a representative of the Department, was also beard at length.
12. With regard to contentions Nos. 3 and 4, it may be stated at the very outset that in the present petition the findings already given by the D. B., for obvious reasons, cannot be allowed to be controverted, as suggested by the learned counsel for the petitioners.
13. A perusal of the record would show that since the question involved in the matter was considered complicated, Wahiduddin J. (as he then was) directed that the case be fixed before D. B. And that the matter was argued, as already stated, besides the counsel for the petitioner, also by Mr. Wasim Rizvi for the Department. It is contended on behalf of the deceased petitioner that Notification dated 3-8-1960 did not apply to the case of respondent No. 1 as he did not fulfil the condition laid down in the Notification for availing it, as he was not holding any allotment order issued by a competent authority or any other authority between 20-12-1958 and 3-8-1960; and that the certificate filed by the Settlement Commissioner alongwith review dated 20-b-1963 is dated 30-11- 1962. The matter save, considered by the D. B. And it was observed as under:- "It is his case that he is. In possession of the house in dispute in pursuance of an order passed by a competent authority, after the 20th day of December, 1958. In support of this allegation the has produced a certificate of the Chief Engineer, as Building and Roads Division, Hyderabad at page 31 of the Paper Book."
14. It was further observed as under:- Wasim Rizvi, the learned counsel for the Department strenuous contended that the petitioner is not entitled to the transfer of the house because alongwith his NCH Form and later on alongwith the application made by film in September, 1960, lie had not submitted 014. Any allotment order or any order of the Chief Engineer which has now been produced on the record of this case."
15. It is therefore quite clear that the point now raised is not a new one and was considered by the D. B.
16. Before arriving at the finding that the Settlement Department should have considered his claim in the light of Notification dated 3rd August, 1960.
17. A perusal of the certificate would show that the house in question which is attached it, the office of the Executive Engineer, Hyderabad Roads Division since the year 1947, had remained in occupation of the Executive Engineers Hyderabad, Roads Division its their residence in their official capacity as Executive Engineers, and that the house was occupies by respondent No. 1, the then Executive Engineer, Hyderabad, Roads Division, with effect from 16-5-1959. With permission of the competent authority. The certificate is of the Chief Engineer, Buildings and Roads Department, Southern Region, 1iyderabad, and since the genuineness of the same has not been contested, it is considered evidence to show that the respondent No. 1 was in occupation of the house with effect from 16-5- 1959 with permission of the competent authority. Memo No. 1600-Coni-Reh/59, dated Ist August, 1959, which is on the subject of transfer of houses to Government servants inter alia provides that a house duly allotted to a Government servant by a Department of the Central Government or Provincial Government may be transferred w him under the Act provided he was in possession of such house; in pursuance of order issued by a competent authority tin or before the 20th December, 1958. Since respondent No. 1, as already stated, has in possession with effect from 16-5- 1959, the aforesaid provision was not of much help and, therefore, it is obvious that he trade application on 20-9-1960 after a fresh Notification dated 3-3-19(0 had been issued. The aforesaid Notification which has been reproduced above, was to the effect that if claimant displaced person was in possession of a house in pursuance of an order passed by a competent authority after the 26th day of December, 1958, but not later than the date of the order, that is, 6th September, 1960, he shall be deemed to be in possession thereof if he was in undisputed occupation of the house and was otherwise entitled to the transfer of such house in pursuance of final order passed by a competent authority. Since it is evident from the certificate issued by his superior Officer that he was in possession with permission of a competent authority, such permission amounts to order of proper authority such as is envisaged in the Notifications. Obviously, this was the interpretation also acceptable to the Division Bench and if the deceased petitioner felt aggrieved by it, his only remedy was to go in appeal to the Supreme Court; but in the instant petition, for obvious reasons, the findings arrived at by the Special D. B. Cannot be controverted as in the case of an appeal.
18. Such findings are binding on this Court and, for reasons already given, with utmost respect, there could be no other finding with regard to the contention.
19. Memo. No. 1600-Com-RehJ59, dated Ist August, 1959, makes it clear that a number of evacuee houses had been placed at the disposal of Government Departments for allotment to Government servants and the Chief inert settlement Commissioner had decided that a house duly allotted to a Government servant by a Department of the Central or Provincial Government may be transferred to him under the Act provided he was in possession of such house, in pursuance of an order issued authority. The competent authority referred to in the by a competent o. Would be the Head of Department of the Provincial aforesaid Memo which in case of an Executive Engineer is the Chief Engineer Government wet Therefore, when the Chief Engineer gives a certificate that an Officer had been occupying an evacuee house during a particular period, with his house to the such consent or permission, it amounts to an order of allotment of the aforesaid Officer.
20. The question about the allotment and transfer of the property in dispute to the deceased- petitioner and his mother has already been decided by the D. B. And, for the reasons already given, the matter cannot be reopened for consideration in the instant petition inasmuch as the decision of the D. B. Was never taken in appeal. It was observed in para. 5 of the judgment that "on the basis of the Memo dated 12th January, 1960, which appears at page 108 of the Settlement Manual the house being one of those which is mentioned in para. 3 of the Memo should not have been included for purposes of transferring it in lieu of earmarking proceedings. The house being allotted by a competent authority on caretaker basis, after 20th December, 1958, is one of those houses.
21. Unfortunately, this aspect of the case was not considered by the Settlement Commissioner". The mere fact that the point was agitated by the respondent No. 1 before Additional Settlement Commissioner in his appeal and was rejected by him by order dated 19-1-1961 makes no difference in the matter.
22. Before I conclude this order it will not be out of place to mention here that the instant petition was filed on 9-1-1975 and it has been filed against the impugned order, which was passed on 25-7- 1969. It is apparent from the record that the deceased-petitioner was personally present at Lahore on the date of the announcement of the order and a copy of the order was granted and delivered to him on 25-7-1969. Thus, there was a delay of about 5 years which has not been properly explained. The explanation offered by the petitioner in para. 12 of the petition is that he was in East Pakistan and was advised to seek remedy before the Settlement Authorities on the ground that the High Court had remanded the case for disposal to the Settlement Commissioner, Hyderabad, while Mr. Mokal was Settlement Commissioner, Lahore and therefore had no jurisdiction to decide the case. As already stated, the deceased-petitioner had put in appearances before the Courts and admittedly was present on the very date that the impugned order was announced. It was for him to show diligence and-to act upon legal advice, after proper verification. It is argued by Mr. Ismail Munshi, the learned counsel for the respondent No. 1, that the deceased petitioner' had ceased to be in service having been dismissed on grounds of misconduct' and was available at Karachi and Lahore and that the intimation dated on November, 1974, conveying the finality of the orders passed by the Settlement Authorities did not furnish a fresh cause of action to the deceased- petitioner. It is further contended that since the deceased-petitioner concealed the proceedings in Civil Court instituted by him in 1972, and dismissed in 1973, it could not be said that the petitioner had not come to the Court with clean hands and, therefore, is not entitled the discretionary relief. In Barkat Bail and 2 others v. The Settlement Commissioner and 3 others (PLD 1978 Kar. 193), it was observed as under: "Laches is now well-established ground for refusal to interfere in the Constitutional jurisdiction which provides a discretionary and extra--ordinary remedy."
23. Reliance was placed on cases reported in 1970 SCMR 537; 1972 SCMR 201; and 1972 SCMR 89. In Zainab Bibi etc. v. Abdullah etc. (PLD 1979 Note 33 at p. 21), where was delay of 20 months in filing writ petition and explanation was unsatis--factory, it was held that the writ petition suffered from laches. In Aziz Ahmed Munshi D.1 etc. v. Chief Settlement Commissioner, Lahore and another (PLD 1979 Note 68 at p. 46) Lahore High Court decision, the important points of laches and the fact that the petitioners had already resorted to civil action were considered; and it was observed that some of the essential ingredients for invoking the constitutional jurisdiction of the Court are that the persons aggrieved must act vigilantly and also approach the Court with clean hands. In Settlement Authority v. Mst. Akhtar Sultana (PLD 1976 SC 410), it was inter alia observed that where "the delay and laches are so palpable that they should have attracted the notice of the High Court, and the mere fact that no objection was taken at the time was no ground to omit to consider the consequences and the grounds of delay and laches. It was the duty of the respondent to explain the obvious delay in moving the writ petition. Nevertheless this Court is entitled to consider the laches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the Constitution Petition".
24. It is argued that as a consequence of delay in the instant petition the house which had been transferred to respondent No. 1 by a P. T. D. Dated 17-10-1969 when no proceedings were pending has been finally sold by registered sale deed dated 19-8-1972 after transfer, by a deed dated 8-9- 1970 due to necessity for the purpose of providing dower for the marriages of daughters of respondent No. 1. In this connection reliance has been placed on a decision of the Supreme Court in Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others (1975SCMR304), wherein it was observed as under:- "In civil matters a valuable right accrues to Vie other side by lapse of time and it is necessary that each day's delay should be satisfactorily explained. This the petitioner has clearly failed to do in the present case. This petition is accordingly dismissed as being barred by time."