' The dispute, in this Constitution petition, relates to transfer of an avacuee house bearing No,238 in Mohallah Shikari, Ahmadpur East situated within the urban limits of Municipal Committee, Ahmadpur East, Tehsil Ahmadpur East, District Bahawalpur.
' The facts, essential for the adjudication of this petition, are not, fortunately, in dispute. These are: that Qamar Din predecessor in interest of the petitioners came to Pakistan as displaced person from India. He was transferred house in dispute (hereinafter referred as "house") by the Deputy Settlement Commissioner, Ahmadpur East vide provisional transfer order dated 15-7-1959 in lieu of evaluation price i,e, Rs,1,440. He deposited Rs,400 and Rs,470 on 20-10-1967 and 2-4-1968, respectively. On 2-12-1973, he submitted application to the Deputy Settlement Commissioner stating therein that his compensation book was lying with the Department and the balance of price due against him be kindly adjusted from the same. This application remaind unattended.
Meanwhile without ordering cancellation of transfer of house from the name of aforesaid transferee, the Deputy Settlement Commissioner auctioned the house on 30-3-1968 in favour of Allah Mehar, herein respondent No,4. The PTD was issued to him on 13-6-1968. Qamar Din submitted an application to the Deputy Settlement Commissioner on 25-3-1968. Praying therein that the auction in favour of Allah Mehar be not confirmed; that the amount due from him be adjusted from his compensation book. This application was too not given any attention. In spite of these circumstances, Qamar Din kept on submitting the applications to the Deputy Settlement Commissioner for redressal of his grievance but in vain. Meanwhile Qamar Din died and the brunt was taken by his legal heirs. It was on 2-10-1973, when the Deputy Settlement Commissioner passed the impugned order rejecting the applications submitted by Qamar Din and directed his legal heirs to seek redressal of their grievance in the Civil Court on the ground that the Settlement Authorities had issued PTD and so had become functus officio.
3. Pursuant to this, the petitioners instituted suit under section 42 of the Specific Relief Act against Allah Mehar in the Court of learned Civil Judge, Ahmadpur East, for seeking declaration to the effect that the confirmation of auction of house in favour of Allah Mehar and issuance of PTD by the Deputy Settlement Commissioner were without jurisdiction and without any legal efficacy. The suit was resisted by respondent No,4. In the written statement, Allah Mehar contended that the Civil Court had no jurisdiction to interfere with the orders passed by the Settlement authorities under the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 (shortly stated as the Act) and so the Court lacked jurisdiction to adjudicate the suit. On merits, it was maintained that the Deputy Settlement Commissioner had correctly auctioned the house and had issued the PTD to him. Necessary issues were framed. The parties led their evidence. Upon review of the evidence adduced by the parties, the learned trial Judge held that the Civil Court had no jurisdiction to scrutinise the orders passed by the Settlement Authorities under the provisions of the Act. On this conclusion the suit was dismissed. On appeal by the petitioners, the learned appellate Court did not agree with the findings of the first Court on the issue of jurisdiction and held that the Civil Court had the jurisdiction to decide the suit. On merits the learned Appellate Court came to conclusion that the Deputy Settlement Commissioner had correctly auctioned the house and issued PTD to Allah Mehar. On these conclusions the suit was dismissed. Feeling dissatisfied with this decision the petitioners filed this Constitution petition.
4. In disputing the validity and correctness of the decision of the two Courts below and the order of the Deputy Settlement Commissioner dated 2-10-1973, the learned counsel for the petitioners raised the following points:--
(i) That the Deputy Settlement Commissioner had no jurisdiction to hold the auction of the house which stood transferred to Qamar Din on 15-7-1959. According to the learned counsel Qamar Din had deposited Rs,400 and Rs,470 on 20-10-1967 and 2-4-1968 and had prayed that the balance of amount be adjusted from his compensation book. On these facts it was contended that the Deputy Settlement Commissioner had no power to auction the house without first passing the order of its resumption.
(ii) That the Deputy Settlement Commissioner while auctioning house in dispute on 30-3-1968 acted contrary to mandatory provisions of paragraph 24 of Schedule to the Act. According to this paragraph the Deputy Settlement Commissioner was bound to give a notice to Qamar Din asking him to make the payment of balance of price within 30 days from the receipt of the notice. This being not done, the proceedings of putting the house in auction, approving of auction and issuance of PTD to Allah Mehar were wholly without jurisdiction. Reliance was placed on Abdul Jabbar Khan and others v. Additional Settlement and Rehabilitation Commissioner PLD 1964 Kar.365, Ali Muhammad v. Settlement Commissioner etc. PLD 1974 Note 14 at P.49 and Muhammad Musa v. Settlement and Rehabilitation Commissioner and others 1974 SCMR 352.
' That the Deputy Settlement Commissioner had also overlooked paras. 32, 33, 34, 35 and 36 of Settlement Scheme No,! As he has given no notice to Qamar Din before putting the house in auction.
5. On the contrary the learned counsel for respondent Allah Mehar supported the order of D.S.C., dated 2-10-1973 and decisions of the two forums below. The learned counsel, at the outset, took three-fold legal objections to the maintainability of the petition. Firstly, that the auction was made on 30-3-1968, that the same was approved on 18-5-1968; that PTD was issued to Allah Mehar on 13- 6-1968; that the petition was filed in year 1975 i,e, after the lapse of about 7 years. On these facts, it was suggested, that this petition suffered from lathes. Secondly, that the PTD was issued on 13-6- 1968 and the matter became past and closed transaction; that this Court had no jurisdiction to re- open the past and closed matter after the lapse of almost two decades. Reference was made to Kh. Bashir Ahmad v. Additional Settlement Commissioner 1991 SCMR 1604, Javed Iqbal v. District Judge, Jhang PLD 1987 Lah.9 and Khalil-ur-Rehman v. Lala Behram Das PLD 1963 Kar.
234. Thirdly the petitioner had filed a civil suit in the Court of Civil Judge, Ahmadpur East; that the suit was dismissed by the first Court on the question of jurisdiction and appeal was dismissed by the appellate Court on merits. According to the learned counsel the petitioner was not entitled to raise the same controversy again in the instant writ petition.
6. After hearing the learned counsel for the parties at some length, I find considerable force in the arguments of the learned counsel for the petitioners. In my opinion paragraph 24 occurring in Schedule to the Act is applicable to this case. The Act was promulgated on 28-3-1958 in order to compensate/rehabilitate the losses suffered by the displaced persons coming from India in the wake of Pakistan. Under section 10 of the Act, the Chief Settlement Commissioner or any officer authorised by him was empowered to transfer or dispose of any property in compensation pool on evaluation basis or by sale, or by means of auction in accordance with the Schedule. The Schedule extensively dealt with the matters pertaining to manner of disposal of property in compensation pool. Under subsection (3) of section 10 of the Act, the Chief Settlement Commissioner was authorised to prepare one or more schemes for the cancellation of properties transferred under subsection (1) of section 10 of the Act. Paragraph 24 in Schedule postulated that if the transferee failed to pay two consecutive instalments or did not pay the amount due from him, in accordance with the terms and conditions on which the property was transferred to him, the Chief Settlement Commissioner or any officer authorised by him might give him a notice to pay the arrears within 30 days together with such penal interest as determined by such officer and in default the transfer of the property be cancelled. This paragraph further laid down that such transferee might apply to the Chief Settlement Commissioner or any such officer authorised by him to restore the property to said transferee by paying the arrears of transfer price. Notice was, however, prescribed in the paragraph for submitting such application. On 20-5-1959, Scheme No,I was promulgated which comprehensively dealt with the disposal of houses and shops to claimants/non-claimants. This scheme had seven chapters which dealt with definition of words used in the Scheme, with submission and scrutiny of applications; with determination of entitlements; with determination of amounts payable by transferees; with intimation of transferees and notice of payment and miscellaneous matters. Chapter VI 'of this Scheme is of significance in this case as it related to payment of amount due from the transferee. Para. 35 of this chapter stipulated that if a transferee failed to pay two consecutive instalments, the Deputy Settlement Commissioner would serve a notice on him requiring him to pay the arrears within 30 days failing which he would be liable to ejectment. Sub-para. (2) of this para. Laid down that if the defaulter had failed to pay the arrears within the period allowed to him, the Deputy Settlement Commissioner shall submit a proposal for his ejectment to the Additional Settlement Commissioner for orders and further if the proposal for ejectment was approved, the Deputy Settlement Commissioner might issue a notice to the defaulter asking him to vacate the property within 21 days. After the expiry of aforesaid period, the Deputy Settlement Commissioner might take necessary measures to dispossess such transferee.
Para. 36 of this chapter postulated that transferee who was dispossessed from the transferred property might make payment of instalments due from him alongwith the penal interest at the rate of 4% per annum within 60 days of his ejectment and might apply to the Deputy Settlement Commissioner for restoration of the property.
7. Then came Settlement Scheme No,VIII which was promulgated on 16-11-1965 by the Chief Settlement Commissioner with the concurrence of the Central Government. This related to cancellation of transfers, resumption and disposal of resumed and 'available properties'. Under para. 2 occurring in Chapter II of this Scheme, the Additional Settlement Commissioners (Urban) or the Deputy Settlement Commissioners were mandated to issue a demand notice by registered acknowledgement-due to transferees who had failed to pay two consecutive instalments of transfer price or where there were no instalments had failed to pay the transfer price. The defaulting transferees were required to make the payment of arrears of price within the date prescribed in the demand notice. Under para. 3(a) the defaulters were given right to apply to the Additional Settlement Commissioner (Urban) or the Deputy Settlement Commissioner, for permission to allow him to pay in lumpsum the whole of balance of transfer price payable by them and the concerned authority was authorised to allow such applicants to pay the arrears of transfer price within 90 days of the order of cancellation.
8. From the aforesaid study I have no doubt in my mind that para. No,36 of Settlement Scheme No,I, para. 2 and para 3-A of Settlement Scheme No,VIII are in substance complement to paragraph 24 of the Schedule to the Act. These provisions cast pre-emptory duty on the Settlement authorities to issue notice to defaulting transferees for the purpose of making payment of balance of transfer price of the property transferred to such transferees and further these provisions conferred right upon such transferees to make the payment of price due against them and thus save themselves from the process of cancellation and eviction. These provisions were entirely in line with the spirit of the Act which was intended to rehabilitation of the people and not to dislocate them. This view is not without judicial authority. Reference may be made to decision laid down in Mst. Zarina Rauf Butt and others v. Malik Aziz Ahmad and others PLD 1982 SC 272. In this case the dispute related to a transfer of property No,79 situated at Guldana Road, Murree. It was auctioned on 14-9-1962 in favour of Mst. Aisha Habibullah. She surrendered all her rights in the property in favour of her real brother Abdul Rauf Butt. On 13-7-1964 the Deputy Settlement Commissioner served a notice on respondent Abdul Rauf Butt under Paragraph 24 of Schedule to the Act to vacate the premises within 21 days as he had defaulted to pay its transfer price demanded earlier from him vide notice dated 3-7-1963. The second notice was served on him on 20-12-1965. The third notice was served upon him on 22-4-1971 asking him to deposit Rs,19,636.25 as this amount adjusted from his compensation book was found to be bogus. Abdur Rauf failed to make the payment of arrears of price and submitted an application for extension of time for payment of above amount uptil 31-12- 1971. He also tendered a sum of Rs,2,000 by cheque. However, before disposal of his request, the Deputy Settlement Commissioner cancelled the transfer on 16-6-1971 and re-auctioned the same on 26-7-1971 in favour of first respondent for Rs,36,000. The Deputy Settlement Commissioner on 7- 8-1971 intimated Abdur Rauf that the transfer in his favour stood cancelled and his request for extension of time was futile. Abdur Rauf Butt filed an appeal before the Additional Settlement Commissioner who passed a ' conditional order on 6-11-1971 allowing Abdur Rauf to pay the amount failing which the re-auction would stand. Abdur Rauf Butt died on 21-11-1971 without making the payment. His legal heirs did not take any step to deposit the amount within the specified time but filed a revision before the Settlement Commissioner who by order dated 17-8-1972 allowed them four months to deposit the amount. Against this order, the respondent filed a Constitution petition which was allowed vide an ex parte order dated 18-3-1972. A prayer for review of the order by the legal representatives of Abdur Rauf also failed.
' Feeling aggrieved the legal heirs of Abdur Rauf Butt filed an appeal before the Supreme Court which was accepted in following words:-- "Settlement Scheme No,VII was prepared under section 10(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Chief Settlement Commissioner which was approved by the Central Government. Subsection (1) of section 1 deals with the transfer or disposal of the property in the compensation pool in accordance with the provisions of the Schedule and subsection (3) concerns itself with the cancellation of transfer of properties in the event of default in the payment of whole or a part of the price or public dues, restoration of such properties and the transfer of the resumed properties in accordance with the Scheme prepared thereunder; and in spite of the opening words in subsection (3) such as `notwithstanding anything contained in subsection (1)' the effect is not to supersede the power of the Chief Settlement Commissioner under subsection (1) but an additional power is given to prepare one or more schemes for the purpose mentioned in clauses (a), (b) and (c) of that subsection. Accordingly, paragraph 3-A of Settlement Scheme No,VIII cannot be construed to efface paragraph 24 of the Schedule but it complementary to it. Clause (1) of paragraph 24 and paragraph 2 of Settlement Scheme No,VIII are worded alike except for the provision in the former for the limit of 30 days for deposit of the arrears of the price whereas no such period is mentioned in the latter but a detailed process is prescribed for the service of notice on the defaulter. Additionally, the power to cancel the transfer of the property is provided in clause (1) of paragraph 24 and such like power is found in paragraph 3-A of Settlement Scheme No,VIII. Clause (2) of paragraph 24, however, prescribes no limit of time within which the property cancelled could be restored on the payment of the full amount. Clause (1) of the paragraph 3-A, however, refers to the making of the application for restoration within 30 days of the order of cancellation and the Deputy Settlement Commissioner is empowered to allow the payment of the price immediately provided no other person had applied for its transfer nor was it put to auction. Similarly, in clause (2) of paragraph 3-A, the appellate authority, which of course includes the revisional authority, is empowered to allow the payment of the balance in a lump sum within 90 days of the order of cancellation with the same restriction of an intervening interest as in clause (1). The provisions of paragraph 24 and paragraph 3-A more or less overlap each other except for the intervening interest which restricts the exercise of the power to restore the cancelled property. It is also obvious that paragraph 24 of the Schedule, being a part of the Act, existed earlier to meet the contingency of non-payment of the transfer price and for cancellation and restoration of the property in case of failure to deposit the price of the property in a lump sum whereas Settlement Scheme No,VIII was enforced in November, 1965, and paragraph 3-A was introduced in 1966 for disposing of properties which hitherto before had not been transferred or which became available on resumption after the procedure laid down in paragraphs 3 and 3-A of the Scheme was complied with. During the interregnum, paragraph 24 was being pressed into service and in the absence of any express or implied bar in either of them as to their applicability, no exception could be taken if the Deputy Settlement Commissioner had pressed into service paragraph 3-A of Settlement Scheme No,VIII.
' In the instant case Abdur Rauf Butt was required to deposit Rs,19,636.25 which was the total of two instalments with a difference of about Rs,100 but as this amount was not deposited, the transfer in his favour was cancelled by the Deputy Settlement Commissioner on 16th of June, 1971. Within 30 days of the cancellation of the transfer as required by clause (1) of paragraph 3-A, Abdur Rauf Butt applied on 3rd of July, 1971, for extension of time but without deciding this application, the Deputy Settlement Commissioner re-auctioned the property on 26th of July, 1971. It is of significance to note that between 3rd of July, 1971 and 26th of July, 1971, this request could have been disposed of as during this interregnum no one had applied for its transfer nor the disputed property had been auctioned. The clog on the exercise of the power can only arise on a reading of clause (1) of paragraph 3-A if, before the filing of the application within the prescribed period of 30 days of the order of cancellation, an intervening interest comes into existence which is not the case here.
' Accordingly, we are of the view that the auction could only follow the result of the application and till then it was not an available property on the same principle as that of lis pendens. Therefore, the first respondent could not be said to have acquired any vested right in the property for reason of its re-auction in his favour. This being the legal position, the revisional authority was free in terms of clause (2) of paragraph 3-A to grant an extension of 90 days for the payment of the price in a lump sum.
' Here we may point out that the property was originally auctioned for Rs,1,58,000 and the hasty manner in which it was put to re-auction and purchased for Rs,36,343 shows that its subsequent disposal was not above board. However, in the order of the revisional authority, there is only the irregularity of allowing an .Additional 30 days for depositing the amount which in the contest of the facts and circumstances of the case was allowed inadvertently and to this extent it exceeds the time limit A 90 days; but as it was in aid of justice to enable the appellants to de posit the amount for securing their vested rights which they had acquired under the first auction, it would not, by itself reflect on the propriety of the exercise of the power as it was invoked in good faith. To interfere with it would be to perpetuate injustice as it would negate their vested rights in the property."
The ratio emerging from the foregoing discussion is that the Settlement Authorities had no jurisdiction to put the transferred property in auction without first passing an order of its resumption within the framework of para. 24 of the Schedule in the Act and para. 36 of Settlement Scheme No,! Read with para. 2-A of Settlement Scheme No,VIII. Applying this principle to the undisputed facts of the case, it is quite clear that neither the Settlement Authorities had issued any notice under para 24 of Schedule to the Act nor had initiated any proceedings whatsoever under the Settlement Scheme No,I and Settlement Scheme No,VIII. In fact, the Settlement Authorities had not attended to this aspect of the case in any manner. Qamar Din in the first instance and his legal heirs after his demise had been consistently asking the Deputy Settlement Commissioner, Ahmadpur East to adjust the balance of price if any, from his compensation book which was lying with him. It is extremely unfortunate to describe that none of the applications was attended by the Settlement Authority in legal manner. It is on the record that Qamar Din had made the payment of Rs,400 and Rs,470 respectively. This being the position, the impugned order passed by the D.S.C.
Dated 2-10-1973 and his further actions of putting the house in auction list, the approval of auction and issuance of P.T.D. To Allah Mehar, are clearly without jurisdiction and cannot be legally sustained. These are declared as such.
9. As regards the question of laches, it needs to be stated that this principle has to be applied according to the facts and circumstances of each case. No hard and fast rule can be laid down for this principle. The doctrine of laches came into examination in Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119. It was held as under:-- "It is necessary to mention here a peculiar feature of Government litigation. No doubt, it was observed in Province of East Pakistan v. Abdul Hamid Dariji 1970 SCMR 558 that in matter of condonation of delay under section 5 of the Limitation Act the Government will not be shown extra indulgence than an ordinary litigant and if so desired only an amendment of law was the way out.
The further experience of nearly two decades after that judgment shows that the inability on the part of the Government to get such an amendment made, has been treated as an accepted and inviolable rule to refuse condonation of delay whenever the plea is raised of departmental delays; which are inherent in the procedure even if culpable negligence is not involved. A just and proper approach which has not been prohibited by the rule in Abdul Hamid Darji's case, is to treat the request for condonation on its own merits like that of any other litigant; and not to shut out the plea on simple formula that it is mere departmental delay negligence; because the decision itself, does not lay down such an inflexible rule. The facts of that case and the condition that each case is to be seen on its own circumstances, cannot at all be ignored. It is well known that indiscriminate application of this decision has caused immense loss to the public exchequer wherein an innocent third party, namely, the taxpayer in ultimate analysis, suffers the loss. This is besides those cases where delays are collusive so as to avoid dictates of justice and law. Hence a departmental delay whenever put forward as a ground for condonation of delay requires consideration in its merits and rejected or accepted accordingly, as the case may be.
' In the case of laches, however, the principles of condonation would be totally different. It being in the field of equity, it will not be denied where either the negligence is not culpable vis-a-vis the merits of the case; or, when there is no equity in favour of the party would be the gainer in case the condonation is denied.
' It is also for the very same reason that bar of laches in equitable jurisdiction has rightly been equated with principle of estoppel and not the statutory bar of limitation. See Mst. Noor Jehan Begum v. Abdul Majid Shaida and another Law Notes 1967 (N.U.C.) SC, 15--Civil Review Petition No,K- 3 of 1967 in Civil Appeal No,K-39 of 1965, decided on 14-4-1967. In the present case no question of estoppel arises. The change of position by the transferee was pendente lite. He cannot take any advantage of this principle either. And the writ petition could not be dismissed except on grounds of merits.
' 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.Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 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 blessing of the Court in its discretionary jurisdiction, as the discretion to dismiss a writ petition cannot be exercised in aid of injustice.
' In this case, if the High Court would have examined the foregoing features in the subject-matter of the writ petition the results would have been different. As a necessary corollary, therefore, it has to be laid down that a writ petition cannot be dismissed on ground of laches, without examining the dictates of justice in the claim of each party. This of course, is in addition to examination of law and jurisdictional point involved in the case."
10. Guided by the rule in the case of Pakistan Post Office, supra, it is quite clear that Qamar Din had been agitating his grievance with unceasing tenacity before the Settlement Authorities; that the legal heirs of Qamar Din filed civil suit in consonance with the directive of the Deputy Settlement Commissioner who vide order dated 2-10-1973 directed them to seek the redressal of their grievance in the Civil Court; that the suit was dismissed on 11-10-1975 by the Court of first instance on the ground of absence of jurisdiction and appeal was dismissed by the learned District Judge on merits vide order dated 24-7-1976. Taking the aforementioned circumstances into account, I am of opinion that Qamar Din and his legal heirs have been prosecuting their grievance without any negligence or indolence. On these facts, the petitioners cannot be non-suited on the doctrine of laches.
11. This brings me to the last contention of the learned counsel for respondent No,4 that the petitioners have agitated their grievance by filing a suit in the Court of Civil Judge, Ahmadpur East; that the Civil Judge dismissed the suit on the question of jurisdiction while the learned appellate Court dismissed their appeal on merits. I am afraid, this point is of no help to the case of respondent No,4. Both the learned counsel agreed that the Civil Court had no juridiction to interfere with the order passed by the Settlement Authorities under the povisions of the Act. Upon the consideration of this aspect, I have no difficulty in coming to the conclusion that the judgments and decisions rendered by trial Judge as well as appellate Court are not hindrance in the way of petitioners to seek the relief under Article 199 of the Constitution of Pakistan (1973). The hallmark of this extraordinary jurisdiction is to foster substantial justice between the parties and keep the functionaries of the State within the orbit of their authority. I have already held that the order passed by the Deputy Settlement Commissioner dated 2-10-1973 and consequential actions by him are coram non judice and are, therefore nullity in the eyes of law. The contention of the learned counsel for respondent No,4 is, therefore, found to be wholly without merit and is accordingly repelled.
12. In the light of foregoing discussion, this petition succeeds with requested reliefs. There shall be no order as to costs.