' Through this Constitutional petition All Bakhsh, Muhammad Hayat, Muhammad Hussain and Shafiq Ahmad, petitioner have challenged the order dated 4-9-1975 passed by learned Settlement Commissioner, Lahore respondent No,4, the order dated 19-3-1974 passed by the Deputy Settlement Commissioner, respondent No,3, whereby their forms under Settlement Scheme No,VIII for the transfer of Khasra Nos, 2287 to 2303 of Qutab Road, Lahore, which according to the petitioners was evacuee property were rejected and the revision petitions filed against the orders of rejection of forms, were dismissed.
2. Briefly stated facts of the case out of which the present petition has arisen are that according to the contentions raised by the learned counsel for the petitioners Khasras Nos,2287 to 2303, Qutab Road, Lahore was evacuee urban property and was in their possession since partition. The petitioners allegedly raised constructions on the said land and ultimately filed forms for transfer of the same as available property under Settlement Scheme No,VIII. These forms were rejected by the Deputy Settlement Commissioner Lahore, respondent No,3, vide order dated 19-3-1973 on the ground that the property in question is not evacuee property and it belongs to respondents Nos,1 and 2 who are Muslim owners thereof and further the petitioners being tenants under the Muslim owners, have no locus standi to claim the transfer of property in question. Aggrieved of the said order, the petitioners filed Settlement Revisions 169/170/171 and 237 of 1973 in the Court of learned Settlement Commissioner, Lahore respondent No,4 (who) after hearing the arguments recorded the following fmdings:-- "Heard the parties and seen the order of D.S.C. I am of the opinion that the character of the property is not clear (it is alleged by the petitioner that it is evacuee property whereas the respondent alleged that it is their own property). The parties instead of coming to the Settlement Court should have gone to the proper forum for the redress of their grievance."
' After recording the aforementioned findings vide a consolidated order dated 4-9-1975 (he) dismissed all the four revision petitions. Aggrieved of the said order all the four petitioners have filed the present Constitutional petition. In the written statement filed by the respondents Nos,1 and 2 and a report submitted by the respondents Nos,3 and 4 it has been stated that in execution of the orders of ejectment passed by the learned Rent Controller which order has been confirmed up to the level of this Court, All Bakhsh and Shafiq Ahmad petitioners have already been dispossessed as they were held to be the tenants throughout and so far as other two petitioners, namely, Muhammad Hayat and Muhammad Hussain are concerned, they have executed rent notes in favour of the respondents. In support of the contentions raised in the written statement, rent notes Annex. R4, R5 and R7 have been appended with the written statement whereas in support of the contentions about the ejectment of All Bakhsh and Shafiq Ahmad Annexures R1 and R2 orders passed by the High Court have been placed on record. Hence locus standi of petitioners to file the writ petition has been challenged. It is further contended that it is a Muslim property, hence its allotment cannot be claimed by the petitioners who are estopped to claim the same. Bar of laches is also claimed. Written reply submitted by the Settlement Department is also in support of the respondents Nos,1 and 2 which is to the effect that property was never treated as evacuee.
3. Mr. Inayat Ullah Chaudhry, learned counsel for the petitioners in support of this writ petition has argued that although Ali Bakhsh and Shafiq Ahmad petitioners were ejected in execution of ejectment orders passed by the learned Rent Controller upheld by this Court, yet ejectment petitions against Muhammad Hayat and Muhammad Hussain petitioners were dismissed as withdrawn after they had specifically denied title of the respondents Nos,1 and 2, in this behalf. He has today placed on record, copies of the orders of dismissal of the ejectment petitions as having been withdrawn. Mr. Abid Hassan Minto, learned counsel for respondents Nos,1 and 2 is not in a position to admit or deny the correctness of contentions raised by the learned counsel to this extent. Argument of the learned counsel for the petitioners is that the orders passed by the learned Rent Controller are not final qua the title in the property in question and at any rate nature of the property has not been determined in the said orders, therefore, the orders on the ejectment side are not of much value for the final determination of the matter in issue. Learned counsel has argued that the learned Settlement Commissioner should have recorded a definite finding with regard to the nature of the property after taking into consideration all the necessary evidence and the facts and circumstances of the case and if it was necessary, learned Settlement Commissioner should have recorded evidence in this case and thereafter should have recorded a definite finding before deciding the revision petitions filed by the petitioneRs, Learned counsel argued that the learned Settlement Commissioner has failed to exercise jurisdiction vested in him under the law.
Learned counsel for the petitioners has further argued that even on merits it stands established that the property in question is evacuee property as is clear from the entries of the revenue record, particularly, the special Jamabandi for the year 1946-47. Merely because rent notes were executed will not debar the petitioners to claim lack of title of the respondents who are proved not to be its owneRs,
4. Mr. Abid Hassan Minto, learned counsel for respondents Nos,1 and 2 has argued that the petitioners are tenants and against two of them an ejectment order has been passed and they have been finally held to be the tenants. They have also been ejected. The other two petitioners have executed rent notes in favour of respondents Nos,1 and 2 which are on the record and, therefore, the petitioners have no locus standi and are estopped to challenge the title of the respondents Nos,1 and 2 as per law laid down by the Honourable Supreme Court in the judgment reported as PLD 1988 SC 221. Mir Salah-ud-Din v. Qazi Zaheer-ud-Din. Learned counsel has further argued that merely because an entry existed in revenue record, it will not be a circumstance to hold that the property has been treated as evacuee property. Reliance in this behalf has been placed by the learned counsel on the judgment PLD 1975 Lah. 833 Isab Khan and another v.
Muhammad Sher and 2 otheRs, Learned counsel has argued that there is plethora of evidence to prove that the property in dispute is not evacuee and is personal property of respondents Nos,1 and 2, therefore, the learned Settlement Commissioner has rightly dismissed the revisions filed by the petitioneRs, He has made a specific reference to Annexures R1, R2, R4, R5 and R7. Learned counsel for the respondents has further argued that this petition has been filed after a delay of about one year from the date of passing of the impugned order and hence the same is barred of ladies.
Learned counsel appearing on behalf of the respondents 3 and 4 has supported the case of respondents Nos,1 and 2 and has contended that the property in dispute is neither evacuee nor has been treated as such, hence the writ petition is liable to be dismissed.
5. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record of the case. I feel that the learned Settlement Commissioner has not properly disposed of the revision petitions. Once the petitions were filed before him it was the duty of the learned Settlement Commissioner to have recorded a definite finding with regard to the nature of the property and in this behalf he could have recorded evidence which may have been produced by the parties in support of their respective contentions. Learned Settlement Commissioner could have remanded the case back to the learned D.S.C. For deciding the controversial question of fact after recording of evidence. The order passed by the learned Settlement Commissioner clearly demonstrates that he has failed to exercise the jurisdiction vested in him under the law and has just brushed aside the controversy raised before him. These were pending proceedings and should have been decided by the learned Settlement Commissioner in accordance with law. See Begum Asmat Iftikhar-ud-Din v. Settlement Authorities (Urban) Allotment Comm. And others 1989 SCM R 738. Consequently, without expressing any opinion with regard to the merits of the case, I hold that on this score alone the order passed by the learned Settlement Commissioner is illegal, without lawful authority and hence is void.
' Argument of the learned counsel to the effect that the writ petition is barred by laches is not maintainable in view of the latest judgment rendered by Hon'ble Supreme Court of Pakistan reported as 1987 SCM R 1119 Pakistan Post Office v. Settlement Commissioner and otheRs, In the judgment referred to above, their Lordships have held as under:-- "It needs to be emphasised that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter subject to statutory relaxation in this behalf, nothing is left to the discretion of the Court--it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or. Slice the remedy unless the grant of relief, in Addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches."
' Their Lordships have further held:-- "The next aspect relates to the nature of the order impugned before the High Court in its writ jurisdiction. We agree that the mere fact that the order is void would not necessarily displace the bar of laches in equitable jurisdiction. The rule is that if it is a just and proper order then notwithstanding it being otherwise void, it need not be set aside in writ jurisdiction, if the same was filed after inordinate delay. See S. Shard' Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCM R 367. On the other hand, if it is a void order and is also unjust and improper besides being illegal, the High Court will have no hesitation in setting it aside despite the objection regarding laches. It is so because the High Court would then be acting on a still higher principle than that of laches that: injustice is not perpetuated with the blessings of the Court in its discretionary jurisdiction, as the discretion to dismiss a writ petition cannot be exercised in aid of injustice."
' Accordingly, delay in filing of the writ petition is not to be seen with the same rigours as bar of limitation as provided under the Limitation Act, particularly, when the impugned order is void and unjust. Even otherwise, learned counsel for the petitioners has explained the delay contending that the petitioners under a misconception filed an incompetent proceeding before the Custodian and when realised the correct legal position, immediately filed the present writ petition. Consequently, in my view, delay in filing of the writ petition is sufficiently explained and as such is not per se fatal to the writ petition. Impugned order is also illegal, void and unjust. Resultantly, the writ petition is accepted. Impugned order passed by the learned Settlement Commissioner, respondent No,4 is declared to be illegal and without lawful authority with the result that all the four revision petitions shall be deemed to be pending before the learned Settlement Commissioner/notified Officer who shall decide the same afresh after giving an opportunity to the parties to be heard and to produce whatever evidence they possess in support of their respective contentions. A definite finding shall be recorded regarding entitlement of the parties after determining the nature of the property in dispute. It is clarified that any observations made in this order regarding merits of the case shall not affect the judgment of the learned Notified Officer and both the parties shall be at liberty to raise all the pleas raised herein and other pleas available to them under the law. Parties shall bear their own costs.