SHAFI-UR-REHMAN, J.-This appeal by special leave calls in question the dismissal of a constitutional petition filed by the appellant on the ground of laches and her having unsuccessfully availed o: the remedy of a civil suit.
2. The appellant- migrated to Pakistan leaving behind in village Dahkoli Tehsil and District Karnal, East Punjab, extensive agricultural land. She filed a claim form for' the verification of the property abandoned there. No land was at first verified. Subsequently, it was found that the special jamabandi of that village in District Karnal had not been received in Pakistan. Her claim was, therefore, at first verified on the basis of title documents in her possession and then on the analogy of claim under Schedule V to the Registration of Claims (Displaced Persons) Act,
156. Allotments were made to her in different villages of Lahore district in satisfaction of her verified claim. In 1963 a policy decision was taken with regard to the entitlement, the verification and the scale of allotment of such claimants from agreed area in respect of whose land, special jamabandis had not been received and there was no likelihood of their being received. The policy decision is contained in memorandum No. 1006-63/2071-R (L), dated 12-4-1963. The decision had the following salient features:
(i) Provisional certificates were issued in favour of the claimants hailing from such estate, vide paragraph 19 Chapter I, Part II of the West Pakistan Rehabilitation Commission Scheme.
(ii) In the next round the claims pertaining to such casts were verified by the Officers appointed for the purpose in the Central Record office or on objection by Officer on Special- Duty (Central Record Office) on the analogy of the procedure prescribed for verification of claims under Schedule V to the Registration of Claims (Displaced Persons) Act, 1956.
(iii) It has been decided that the original orders passed by the Revenue Officer or the Officer on a Special Duty (Central Record Office) on objection oil the analogy of Schedule V should stand and the orders of cancellation or modification, etc. If passed by Officer on Special Duty should be ignored.
(iv) On the analogy of non-agreed area in Schedule V claims the allot--ment should be subjected to the progressive cut prescribed in para--graph 5 of Martial Law Regulation No. 89 and a formula was prescribed.
3. In consequence of these decisions a direction issued on 8-9-1966 for bringing down the allotments of the appellant to a ceiling of 5350 units leaving an option to her to purchase the excess allotted area. When effect was sought to be given to these instructions she instituted a civil suit on 10-6-1971 challenging the "robkar" which issued as a consequence of the policy decision referred to earlier. The suit was contested mainly on the ground of jurisdiction and the trial Court on 23-6-1972 dismissed it for want of jurisdiction. She thereupon invoked the constitutional jurisdiction of the High Court on 28-7-1972. Her case was that she was a claimant from the prescribed area; that she could not be dealt with in the matter of verification, allotment and ceiling, etc. By the limitations and restrictions on claims from non-agreed. She disputed the policy decision whereby her claim and entitle--ment were subjected to the same ceilings and restrictions as were prescribed for claimants from non-agreed area In the alternative her contention was that verification under Schedule No V had taken place on the basis of authentic documents produced by her and once such verification had taken place under the instructions of the competent authority the same could not be subjected to further reductions or curtailments. It appears that two preliminary objections were taken to the very competence of the constitutional petition and these objections" prevailed in the High Court. The first was that the matter had been taken to the Civil Court where the appellant had been successful and secondly, that her petition suffered from laches as she was impugning the departmental policy decision taken in 1963 of which implementation was sought in 1966.
4. The learned counsel for the appellant has challenged the circular, memo or Press-note of the Chief Rehabilitation and Settlement Commis--sioner on various grounds. Firstly, it is contended that once the view taken by this Court in Abdur Rashid's case (PLD1962SC42) came to be substituted by the view taken. In the case Muhammad Shafi (PLD1971SC791) and it was held that the claims are to be verified and satisfied to the extent of the estate that is commensurate with loss suffered by the claimant and no more, the ceiling, the reduction and the scale of allotment, all become illegal and beyond the power of authorities that be. Secondly, it is contended that the refugees from agreed areas were treated as a class and dealt with by the Settlement Scheme framed under the Act. There was, therefore, no jurisdiction left to make yet another class out of it for cases like that of the petitioner and provide for a treatment entirely different and somewhat arbitrary and highly prejudicial to the interest of the claimants like the petitioner. Such a sub- classification and treatment, according to the learned counsel is unreason--able, highly discriminatory and against law. Thirdly, section 16 of the Displaced Persons (Land Settlement) Act is being invoked to contend that as the allotment had been made and confirmed in favour of the petitioner the property so-allotted and confirmed had gone out of compensation pool and was no longer amenable to the jurisdiction of Rehabilitation Settlement Commissioner. Finally, it was contended that the verification once made could not be reviewed, modified or reduced in the manner in which it was sought to be done because such a power was entirely lacking in the competent authority.
5. The learned counsel for the contesting respondent has, on the other hand, contended that in fact the claim of the appellant was, barred by laches as she had in the civil suit attacked only the `robkar' and those proceedings the Chief Rehabilitation and Settlement Commissioner had not been subjected to challenge. This was done for the first time in the High Court in 1972 and that was indeed very late. The petitioner in order to explain laches or to establish her own diligence could not, therefore, avail of the earlier proceedings in the Civil Court.
6. As regards the two preliminary objections which have prevailed in the High Court, namely, the objection of lashes and the effect of petitioner having filed a civil suit we find that on the facts of the case these objections are not substantial. At first the petitioner became aware of the Robkar directing reduction to be made in her verified and settled claim. She instituted a civil suit directed against that Robkar and Officer issuing it. It was sub--sequently that the instructions behind the Robkar came W the notice of the petitioner. Besides, the civil suit of the petitioner was never dealt with on merits but failed on the ground that the Civil Court had no jurisdiction The accepted principles for applying the bar of laches are: (i) Acquiescence on the plaintiff's part; (ii) Any change of position that has occurred on the defendant's part. Applying these tests the petitioners would not appear to be at fault by her conduct because she made it clear that she was not submitting or accepting the reduction but was challenging it. Besides being in possession as allottee there was no question of the other side's position being altered to their disadvantage. We would, therefore, consider that this was not a case where the principal of laches or res judicata could have been applied so as to entail dismissal of a constitutional petition.
7. In support of his first submission on merits, that the appellant had to be given land equivalent in area and proprietary interest to that abandoned by her in the agreed area of India the learned counsel for the appellant has relied on paras. 2, 4, 21 to 23 of Rehabilitation and Settlement Scheme Part I, and para. 29 of Rehabilitation and Settlement Scheme Part II. In addition, the learned counsel had drawn support from the decision of this Court in Additional Settlement Commissioner (Lands) v. Muhammad Shafi, which according to the learned counsel made a material departure from the earlier law on the subject as contained in Abdur Rashid v. Pakistan and others. Earlier, the allotments were held to be mere grants controlled by the discretion and the will of the grantor having not much connection with the land abandoned in India. Subsequently, however, it was held that it was in the nature of compensation in qualify, content and extent.
8. On the conceptual plan the submissions of the learned counsel for the appellant are not in dispute. The entire scheme and exercise of the verifica--tion of the claims, whether by reference to the special jamabandis, other documents and evidence, or otherwise, was in substance directed towards ascertainment of factual information with regard to the property abandoned in India.
Every effort was made to make the exercise as definite and accurate as possible in the circumstances of the case to the extent and in the manner possible in the light of the agreement between the two dominions. The authentic record with regard to proprietary holding of an affected individual was obtained and made the sole basis for verification so far as agreed area rural property was concerned. Nevertheless, there were situations and these were bound to arise in the wake of unprecedented disturbance and movement of population that followed partition of sub- continent where such an arrange--ment did not come up to or meet the challenge and the requirement. It was the exception. To meet such exceptional situation, a provision had to be made arid the provision when so made did not detract from the generality of the provision made for the object of both was the same, namely to identify nature and extent of the property and interest in it abandoned in India.
9. A perusal of the law referred to by the learned counsel for the petitioner itself shows that certain restrictions, reductions and regulating features were already visualised in the scheme. For example, in para. 4 Part I of the Scheme it was provided generally that land under the Scheme will be allotted to a claimant in an area corresponding in produce value to the land owned and abandoned by him. The overriding power of the Rehabilitation Commissioner to prescribe the scales of allotment and certain other restrictions were recognised by para. 3 and by para. 4 itself. In spite of the best efforts of the two dominions it was not possible to make available the basic or fundamental record of ownership of all the territories in agreed area. There were pockets for which the record could not be made available. An alternative had to be devised for verification of the claims relating to areas.
Such a situation was not novel for that village alone. Such a situation had in fact arisen in the case of Bhartpur, Alwar Bikanir, etc. In the case of Ali Muhammad and 3 others v. Settlement Commissioner Land Multan (PLD 1976 Lah. 880), this question came up for the first time before the High Court. Special jamabandi in that case had not been received from Bhartpur, Alwar and Bekanir, etc. And the verification had been ordered as under Schedule V in accordance with the policy framed by the Chief Rehabilitation and Settlement Commis--sioner. Such verification was upheld and the same decision came up before this Court in Muhammad and another v. Settlement Commissioner (1979 SCMR 245). The argument was similar as has been advanced in this case. It was disposed of with the following observations: "It was again urged that the verification of the claim on the analogy of Schedule V to the Registration of Claims (Displaced Persons) Act, 1956, was illegal in view of paragraph 29 of Part 11 of the Scheme which permits verification, only on the basis of the entries in the special jamabandi. It was also pointed out that the word `claim' as defined in section 2(3) of the Registration of Claims (Displaced Persons) Act, 1956, did not include the claim of a person who had migrated from the States of Alwar, Bhartpur and Bekanir and, therefore it could not be verified on the analogy of Schedule VI of the Act as prescribed in the Press Note. It is not disputed that paragraph 29 of Part II of the Scheme is itself an instruction which was issued for the implementation of the Scheme. Its language is also not rigid in its application, for, it provides that in case of hardship in an individual case reference could be made to the Rehabilitation Commissioner which clearly implies a relaxation of the instruction. On this view of the matter it is difficult to accept that no provision could be made for the verification of the claim otherwise than on the basis of the entries in the special jamabandi. Therefore, to alleviate the hardship of the refugees from those States the Press Note was issued under the powers conferred by paragraph 23 of the Scheme which provided for the verification of their claims on the analogy of Schedule VI to the Registration of Claims (Displaced Persons) Act, 1955. This Press Note is on the same footing as paragraph 29 of Part II of the. Scheme and as such paragraph 29 can have no overriding effect."
10. The contention of the learned counsel for the appellant that it was an unjust exercise of discretion against the petitioner that her claim though from the agreed area had to be dealt with on the analogy of Schedule V is untenable because what had to be done was on account of necessity, the necessity having arisen because the special jamabandi of the area was not available and there was no likelihood of its being made available in future. In order to overcome that difficulty which appeared insurmountable for the time being an alternate method of verification of claims which was definitely in vogue in respect of properties elsewhere and was considered equally good alternative was adopted. There was justification for such a treatment.
There was reasonable ground for doing so. The method adopted was also just and proper and had been applied to a number of cases of a similar nature. It cannot, therefore, be said that the rationality or the principle behind such a sub-classification was non-existent or devoid of reason and justice.
11. The contention that the first verification which was expressed to be provisional was final and with that the property went out of compensation pool under section 16 is not of avail. Not only the verification was tentative at that stage and expressed to be provisional it had to follow all the limitations and restrictions in the matter of reductions and determination as was adopted for similar claims under Schedule V of the Registration of Claims (Displaced Persons) Act. It cannot be urged with any success that though the system of verification in the absence of special jamabandi should be as for Schedule V the limitations and reductions which were ordered and actually given effect to in the case of such claims as were verified under Schedule V should not have been applied to the verification of the appellant's claim. They were the part of a system, a method by itself and came to be engrafted on the Scheme of verification and its finalization.
12. On a consideration of the entire case of the appellant, we find that the memo, of the Rehabilitation Commissioner was within his competence, that the Scheme of verification and the scale of settlement of the verified claim followed a known and accepted principle and was not violative of any provision or principle of law. Hence the appeal falls and is dismissed, with no order as to costs.