' Property No, C-1132 Gumti Bazar, Lahore was allotted to the petitioner. Subsequently, however; this property has been resumed vide order dated 20-9-1973 passed by respondent No,1 and has been transferred in favour of respondent No,2 for the reasons that the petitioners failed to pay an amount of Rs,11,520 in pursuance of the notice dated 24-7-1973 which amount was due against the petitioners in lieu of the transfer of the property in their favour. This order has been challenged in this Constitutional petition.
2. Mr. S.M. Naseem, Advocate, learned counsel for the petitioners besides raising other objections has contended that firstly no amount was due against the petitioners and secondly even if the amount was due, no notice for payment of the same was served upon them, therefore, the impugned order of cancellation of the allotment of the petitioners is void ab initio and hence the subsequent disposal of the property in favour of respondent No,2 is also void. In support of his arguments, learned counsel for the petitioners has drawn my attention to a certified copy of the notice which allegedly had been served upon the petitioneRs, Learned counsel has referred to the affidavit of the process-server as well as the report of the serving officer acording to which a registered notice had to be issued but no registered notice was ever issued to the petitioneRs, Learned counsel contends that the report of the process-server is false and collusive. No process- server ever approached the petitioners on their address nor notice was ever torn by him. At any rate, this service was not considered proper even by the serving officer and it was reported that the notices are to issue through registered letter, but no notice was ever issued. Learned counsel further says that even the impugned order of cancellation was passed without issuing any show- cause notice and hence the same is void ab initio.
3. Mr. Hamid All Mirza, Advocate has appeared and conceded the proposition of fact and law propounded by the learned counsel for the petitioner. Khan Younas Khan, Advocate has appeared on behalf of respondent No,2 and has referred to Annexures R.3 and R.4 to contend that the petitioners were served with a notice to deposit the dues which they failed to deposit in spite of service upon them, therefore, the petitioners were properly served and they have failed to deposit the dues and the impugned order in been passed in accordance with law. Learned counsel, however, is not in a position to show that prior to the order of cancellation of the allotment, any show-cause notice was ever given to the petitioneRs, A copy of the said order is on the record of the case and has been examined which shows that the impugned order has been passed without issuing any show-cause notice and in fact has been passed on the basis of the office note.
Learned counsel has further argued that the writ petition is barred by the principle of laches.
4. I have considered the arguments addressed by both the learned counsel for the parties and have also gone through the record. It appears that the petitioners were never served with any notice for payment of dues and no notice was ever issued before passing the order of cancellation of the allotment. Report of process-server appears to be fishy inasmuch as no time and place is mentioned in the report which (is) in the shape of an affidavit. No separate affidavit has been sworn in by the process-server nor the same has been got attested. Report and order of the serving Officer are reproduced as under:-- {{URDU TEXT}} P/S {{URDU TEXT}} ' In view of above report of process server, a new demand notice for sending it through registered post has been prepared which may kindly be signed so that proper service of the notice could be effected.
' For favour of signature please.
' DSC-III Sd/-28-7-1973 ' Hence substituted service could not have been ordered at all. Service of registered letter, is also not proved. See case of Syed Iqbal Hussain v. Mst. Sarwari Begum (PLD 1967 Lahore 1138). The resumption order has been passed on the basis of office note without judicious application of mind and without issuing a show-cause notice to the petitioner. Consequently, the impugned order of cancellation of petitioners' allotment is patently illegal and is without lawful authority, hence is void ab initio as held in case of Full Dad v. Member, Board of Revenue, Punjab (PLD 1977 Lah. 264).
' As the basic order is void, therefore, order of subsequent disposal of the property in question in favour of the respondent is also void as held in case C of Yousaf All v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104).
' I do not agree with the learned counsel for the respondents that this writ petition is barred by laches. The impugned orders having been passed without notice to the petitioners are void ab initio and are unfair and unjust. Principle of laches is not as rigorous as the law of limitation is, as held in case of Pakistan Post Office v. Settlement Commissioner (1987 SCMR 1119) and Muhammad Ismail Qureshi through his Legal Heirs v. Gulab Din and others (1988 SCMR 1001). In case of Pakistan Post Office (supra), it has been held as under:-- "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 blessings of the Court in its discretionary jurisdiction, as the discretion to dismiss a writ petition cannot be exercised in aid of injustice."
' The petitioners have filed this writ petition immediately on coming to know of passing of the order and, therefore, it cannot be said that this writ petition which has been directed against the void and unfair order is barred by the principle of laches, as per law declared by the Hon'ble Supreme Court.
' Resultantly this writ petition is accepted and the impugned order dated 20-9-1973 directing the cancellation/resumption of the property in question and the subsequent disposal and transfer thereof in favour of respondent No,2 are declared to be illegal and without lawful authority and the same are set aside, with the result that the matter is remanded to the learned Member, Board of Revenue/Chief Settlement Commissioner, Lahore for decision of the case afresh. Learned Member, Board of Revenue/Chief Settlement Commissioner shall determine the dues if any which are payable by the petitioners after associating them with the proceedings and if it is found that there are some dues, the petitioners shall be given an opportunity to pay the same and thereafter the question of resumption or otherwise as well as the further disposal of the property shall be decided in accordance with law.
' It is clarified that the learned Member, Board of Revenue/Chief Settlement Commissioner may hear the case himself or may entrust the same for decision to a competent notified officer who shall decide the matter within a period of three months.