This writ petition calls fn question the order of the Settlement Commissioner, Peshawar, dated 12-1- 1965, in which he reached the conclusion that the disputed property was rightly transferred by the Department to Sher Khan, respondent No. 2, long before it was transferred to petitioners by the Ministry of Rehabilitation, Government of Pakistan, on 2-3-1960, and, therefore, the petitioners had acquired no rights in that property.
2. The brief facts of the case are that bungalow No. 53--The Mall, Peshawar Cantt., which is the subject-matter of dispute In these proceedings, was an evacuee property, but the owner of It (an evacuee Hindu gentleman) had rented it out to Sub-Post Office since quite a few years before Partition. It is not disputed that after the coming into existence of Pakistan, the owner of the bungalow in question migrated to India and thus the property became evacuee. On December 20, 1959, the property was put to auction under the Earmarking Scheme contained in Settlement Scheme No. V and the lot was drawn In favour of respondent Sher Khan. On 26-12-1959, a notice of transfer, in Appendix TI, was issued by the Department in favour of Sher Khan, the concluding portion of which reads as follows :- "Please furnish a reply to this Notice to the Deputy Settlement Commissioner, Peshawar Cantt. And produce the above-mentioned documents 1n this office within ten days of the receipt of this Notice failing which it will be presumed that yon are agree to the transfer of the aforesaid property to you on payment of the above-mentioned amount in cash which will be recoverable from you in thirty- six equal monthly in. Statements. Please note that failure to pay two consecutive instalments will make you liable to be dispossessed and ejected from the property and the outstanding amount will be recoverable as arrears of land revenue."
On 2-3-1960, the Government of Pakistan, Ministry of Rehabilitation, wrote to the Chief Settlement Commissioner a letter saying that, " --------- the properties described in the enclosed lists are required by the Pakistan Posts and Telegraphs Department on a permanent basis. In exercise of the power conferred by clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the Central Government is hereby pleased to accord approval to the sale of the said properties to the Director- General, Posts and Telegraphs Pakistan on payment of the prevailing market price to be determined by you on the conditions that ---
(1) the properties in question are not transferable to any person under provision of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958; and
(2) that the market value for the properties determined by you is recovered before we transfer is affected.
It is requested that "action may kindly be taken accordingly in direct consultation with the Director- General Posts and Telegraphs, Karachi to whom a copy of this letter has been sent for necessary action. This Ministry may kindly be informed in due course of the action taken in the matter."
The letter was followed by another letter of the Settlement Commissioner (Policy), Lahore dated 6- 10-1963, in which the attention of all the Deputy Settlement Commissioners was invited to the above letter of the Government with these observations:- "Postmaster General, Lahore and other Postal authorities have reported to this office that in number of cases the properties transferred to the Posts and Telegraphs Department have been transferred to private individuals even after their transfer to that Department under orders of the Central Government. No property transferred to private individual after 2-3-1960, can be allowed to remain with him in view of its earlier transfer in favour of the Posts and Telegraphs Department in the public interest with the specific approval of the Central Government. The Postmaster General is being requested to take up such cases with you for necessary action. Applications received from the local postal authorities in this connection may please be carefully examined and if you are satisfied after hearing the parties, where necessary, that the property was transferred to private individual by mistake after 2-3-1960, a complete case with necessary details may be submitted to the Settlement Commissioner of the area concerned for suo moto revision.
This memo. Has been issued with the approval of the Chief Settlement Commissioner. The act taken in each case may be intimated to this office in due course."
3. Upon receipt of this letter, the Deputy Settlement Commissioner, Peshawar, issued notices to the parties to appear before him in support of their rival claims. It is conceded by the learned counsel for the parties that in pursuance of this notice, both parties appeared before the Deputy Settlement Commissioner, who after hearing them, came to the conclusion that the property in dispute had been transferred to respondent Sher Khan after the target date of 2-3-1960, on which it had already been transferred to the petitioners. He, therefore, in view of the directions given to him by the Settlement Commissioner (Policy) In his letter dated 6-10-1963, submitted the case to Settlement Commissioner, Peshawar, for suo moto revision.
The learned Settlement Commissioner, however, disagreed with the views of tire D:puty Settlement Commissioner and by his order dated 12-1-1965, upheld the transfer of tire property in favour of Sher Khan with these observations :- "The order of the Central Government by which this property along with other property was to be transferred to the Postal Department mentioned one important condition that the property should not be transferable to any one under the Displaced Persons Settlement Scheme. Applying this condition, I find that on 2-3-1960, when this sanction issued (sic) the property had already been disposed off under Scheme No. V as Appendix 11 referred to above had issued and the proposal must be deemed to have been accepted. That condition attached to the order of the Central Government irrespective of the issuance of the P. T. O. Or the P. T. D. Excludes the property No. 53, The Mall. Besides, we have to determine as to what is transfer after 2-3-1960. The issuance of a P. T.
O. Is not transfer. The transfer is complete when the proposal has been accepted by the party. That was ten days after the receipt of Appendix 11 with the condition in para. 4 reproduced above. In this context I find that this property stood excluded from the order of the Central Government due to the condition No. (I) attached to the order and its transfer to Sher Khan cannot be interfered with.
The papers are returned. No interference in exercise of suo moto revision is called for."
4. The learned counsel concedes before me that after this order, petitioners started paying rent of property to respondent Sher Khan and thereafter to respondent Roomi, M. Framji, to whom Sher Khan had surrendered the property through surrender-deed which was approved by the laepartment. Notwithstanding this position, however, petitioners started approaching the Deputy Commissioner, Peshawar, Commis4oner, Peshawar Division and the Army Authorities with a view to urging upon them to requisition the disputed bungalow for their use, but their efforts did not fructify. The learned counsel concedes, however, that during all this period, Petitioners continued paying rent to Mr. Roomi M. Framji for quite a few years until they defaulted fur few months and consequently Mr. Framji filed eviction proceedings against them on that ground as also that they had damaged the property. These proceedings are still pending in view of the stay-order passed by this Court on 31-9-1972, that until the disposal of this petition no final order shall be passed by the Controller.
5. In this petition, which was obviously filed after the Institution of the said eviction proceedings, challenge is laid to the impugned order of the learned Settlement Commissioner on quite a few grounds, but the only ground pressed by the learned council for the petitioners is that the issuance of transfer order in favour of respondent Sher Khan by the Department, in Appendix II, on 26-12- 1959, would not convey him any title to the property unless a Permanent Transfer Deed had been issued to him before the target-date of 2-3-1960, by which the Central Government had already transferred the property to petitioners. His contention is that since P. T. O. Of the property had been issued to respondent Sher Khan long after this date i.e. On 10-11-1962, and the P. T. D. Still later, the learned Settlement Commissioner was clearly in error to hold that the issuance of transfer order in his favour, in Appendix II, would be sufficient to endorse the claim of Sher Khan that he had become the owner of the property.
6. Apart from the fact that the learned counsel failed to convince me as to how the above finding of the learned Settlement Commissioner is illegal he is faced with formidable difficulty of laches of six years with which this petition suffers. In order to meet this objection, the learned counsel contended that the impugned order of the learned Settlement Commissioner is void for want of compliance with audi alteram partem, for in the proceedings before him the petitioners were neither served with any notice, nor heard in support of their case. The learned counsel conceded, however, that these proceedings were in the nature of suo moto revision. But all the same he relies upon subsection (5) of section 20 of the Displaced Persona (Compensation and Rehabilitation)
Act, 1958, which reads as under:--- "No order under this section shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard."
I am afraid reliance on this provision is entirely misconceived, for/by its clear language the only person who would be entitled to notice would be Sher Khan, to whom, in view of the order of transfer conveyed to him in Appendix II, the property had boon transferred by the Department on 26-12-1959, i.e. Long before it was transferred to the petitioners on 2-3-1960.
Be that as it may, even if I was to agree with the contention of the learned counsel, petitioners would still be disentitled to any relief in the present proceedings, for the petition which they have filed suffers with grave laches. It is true that if an order is basically without jurisdiction, then the delay to challenge it in Court would not, by itself, disentitle an aggrieved person to remove it from his way. But in this case the position is entirely different. For six long years, the petitioners have acquiesced in the impugned order, have paid rent of the disputed bungalow first to Sher Khan and then to Framji and by this conduct, they gave a tacit assurance to the latter that they had reconciled themselves with the decision of the Settlement Commissioner and consequently enabled him to obtain Permanent Transfer Deed of the property from the Department. Surely, any interference with the impugned order at this stage is bound to prejudice the interest of Mr. Framji and, therefore, this Court would not extend to the petitioners any indulgence in the present constitutional proceedings. If any authority is needed for this conclusion, it would suffice to quote the following dictum from a Full Bench Judgment of Lahore High Court in the case of Mian Miraj- ud-Din v. Senior Superintendent of Police (PLD 1970 Lah. 569) ;- "'It may be remarked that except when there is a bar of limitation, the delay simpliciter has never been treated as a bar. Laches has often been defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea to laches, by itself, would not be sufficient to bar the remedy."
The Supreme Court of Pakistan too had the occasion to consider the discretionary nature of constitutional jurisdiction of superior Courts in the case of Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (PLD 1964 SC 829). In that case, the order passed by the Settlement Commissioner was found to be a nullity in the eye of law, but their Lordships nevertheless came to lay down the following principle :- "In the present case there can he no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance which prevented the Settlement Commissioner in law from exercising his power of review.
Nothwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order i3 without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
This dictum would appear to apply to the facts of the present case for petitioners, after the decision before the Settlement Commissioner went against them, started paying rent first to Sher Khan and then to Framji entirely on account of their free volition until they committed default and Mr. Framji started eviction proceedings against them. By this conduct, petitioners seem to have given a tacit assurance to Framji that he was a B rightful transferee of the property and it was for this reason that Framji also obtained Permanent Transfer Deed from the department in his favour.
In this view, the petitioners would appear to have disentitled themselves to any discretionary relief', even if the contention of the learned counsel is accepted and the order of the Settlement Commissioner is held to be without jurisdiction.
7. The not result of this discussion is that this petition fails which is hereby dismissed with cost.