1. SARDAR SAID MUHAMMAD KHAN, C.J.---As common question of law is involved in the above- entitled appeals, we propose to dispose of the same by the single judgment.
2. The brief facts giving rise to the present appeals are that some land situate in Chella Bandi, Tehsil Muzaffarabad, comprising various Khasra numbers was owned by the petitioners-respondents which was acquired through award for the purpose of constructing University Campus under the Ordinance known as Azad Jammu and Kashmir Acquisition of Land (Housing and Development Schemes) Ordinance, 1981 (hereinafter shall be called the Ordinance). The market value of the land in the above-referred appeals was assessed to the tune of Rs. 40,000 per Kanal but due to the restriction. Envisaged under section 7 of the Ordinance, the amount payable to the owners was to the tune of Rs. 20,000 per Kanal plus 15% of the said amount for compulsory acquisition. The majority of the landowners challenged the award through appeals before the Additional Commissioner, Revenue, under the provisions of the Ordinance but the same were dismissed. After the dismissal of the appeals, two writ petitions were filed by some of the owners in December, 1986 challenging vires of section 7 of the Ordinance on the ground that the same was violative of the fundamental right enshrined in the Interim Constitution Act. The High Court consolidated both the writ petitions and accepted the same vide judgment dated 4-7-1992 holding that the restriction imposed on the payment of compensation being violative of fundamental right, was ab initio void.
3. Consequently, the owners who had filed the writ petitions were allowed compensation of the land acquired at the rate of Rs. 40,000 per Kanal, the market value of the land determined by the Collector, Land Acquisition. Thereafter, the respondents in the above-entitled appeals filed three writ petitions praying that in view of the judgment of the High Court whereby the restriction imposed under section 7 of the Ordinance was held to be violative of law, they were also entitled to the compensation at the rate of Rs. 40,000 per Kanal plus 15% `Jabraana' and the interest on the compensation amount to be awarded to the landowners. In alternative, they sought writ of mandamus against the respondents-appellants for making a fresh award of the land acquired.
4. The said writ petitions were filed after a delay of 6 to 9 years, reckoned from the date of dismissal of their appeals by the Additional Commissioner. The explanation for filing the writ petitions at a belated stage was stated to be that the respondents-petitioners had been waiting for the outcome of the writ petitions entitled A.I Zaman and others v. Government of Azad Jammu and Kashmir and others (Writ Petition No. 79 of 1986) and Miskeen Shah and others v. Azad Government and others (Writ Petition No. 83 of 1986), decided on 4-7-1992 and that it was after the disposal of the said writ petitions ' that the petitioners-respondents approached the respondents---appellants for payment of the compensation at the rate of Rs. 40,000 per kanal in view of the judgment of the High Court dated 4-7-1992. When the appellants failed to oblige them, they filed writ petitions in the High Court. The High Court has observed in the impugned judgment that although the writ petitions were filed by the petitioners-respondents in the High Court after a considerable delay and were suffering from laches considered from the dates of the decision of the appeals filed by the petitioners-respondents by the Additional Commissioner, yet as the same were filed `immediately after' the decision of the aforesaid two writ petitions whereby section 7 of the Ordinance was held to be violative of the Constitution, the delay was to be condoned. Consequently, all the three writ petitions filed by the petitioners-respondents were accepted and they were held entitled to get the compensation at the rate of Rs. 40,000 per Kanal which was determined as market value of the land acquired. The appellants filed the above entitled appeals against the judgment of the High Court on various grounds.
5. A preliminary objection was raised by Ch. Muhammad Hussain, Advocate, the counsel for Ch. Muhammad Din, respondent, that Government is not an `aggrieved party' and, thus, was not competent to file appeal. He has submitted that there are no signatures on the `Vakalatnama' by the University Syndicate and the Collector Land Acquisition. Thus, according to the learned counsel, the appeal cannot be deemed to have been filed on behalf of the said appellants and appeal on behalf of the Government is incompetent as it was not an `aggrieved party' and could not file appeal. The objection is a fallacy because the Government was a party in the writ petition filed by Muhammad Din, respondent, and even otherwise, in cases of compulsory acquisition of land, the Government is always a necessary party whether the land is acquired for an autonomous body or for a Government department. The absence of signatures of University Syndicate and Collector Land Acquisition would not make any difference because even if the same would have been instituted by the Government alone or the Vice-Chancellor, it could not be dismissed as being incompetent.
6. Preliminary objections were also raised by Mr. Ishfaq Hussain Kayani, Advocate, to the effect that in Appeal No. 77 of 1994 some of the land--owners who were parties in the High Court were not arrayed in the line of respondents in the appeals filed in this Court. He has submitted that one Abdul Aziz, who was party in the Court below has not been impleaded in Appeal No. 79 of 1994 in this Court. He has further submitted that two applications were filed in the High Court: one through him (Mr. Ishfaq Hussain Kayani, Advocate) and other through Syed Nazir Hussain Shah Kazmi, Advocate. The High Court, vide its interim order, dated 30-6-1994, ordered that applicants will be deemed to be pro forma-respondents in the relevant writ petitions but they have not been arrayed as respondents in the appeals filed in this Court. Thus, according to the learned counsel, the appeals are incompetent and should be dismissed on this sole ground.
7. So far as Abdul Aziz is concerned, the perusal of the record shows that he was one of the petitioners in the High Court in Writ Petition No. 33 of 1990 but he has not been arrayed as respondent in Appeal No. 79 of 1994 filed in this Court. The question which needs resolution is as to whether his non---impleadment in the appeal before this Court is fatal to Appeal No. 79 of 1994. It may be pointed out that it was not controverted at the Bar that his share of compensation is ascertainable from the award made in favour of the land--owners. Thus, it would be deemed that no appeal was filed against Abdul Aziz in this Court. Consequently, the pronouncement of High Court in his favour B would remain intact. As his share of compensation is ascertainable, his non---impleadment in Appeal No. 79 of 1994 would not result in dismissal of appeal against other respondents.
8. So far as question of arraying the land-owners mentioned in the application presented on 30-6- 1994 filed through Mr. Ishfaq Hussain Kayani, Advocate, is concerned, that was filed on behalf of Ghulam Haider and others, the total number of applicants comes to 19. Out of these, there is no power of attorney in favour of Mr. Ishfaque Hussain Kayani by Mst. Zaitoon, Ismail Shah, Yousuf Shah, Muhammad Shah, Mst. Ghugee and Mst. Razia as there are no signatures or thumb- impressions by them on power of attorney. So far as other thirteen persons mentioned in the application filed by Mr. Ishfaq Hussain Kayani are concerned, their signatures or thumb- impressions appear on the `Vakalatnama' but no correction was made in the title of the writ petition filed in the High Court and, thus, their names do not appear in the impugned judgment.
9. Therefore, it was not possible for the appellants to array them as respondents due to the absence of knowledge that they were party. It may also be stated here that the aforesaid land-owners prayed that they should be arrayed as petitioners in the relevant writ petition but instead the High Court, vide its order dated 30-6-1994, observed that as the application was not opposed by anybody they would be `deemed to be pro forma-respondents'. No specific relief has been given to the pro forma respondents and they did not challenge the relevant order of the High Court before this Court contending that they should have been impleaded as petitioners and not as pro forma respondents in the writ petition. As their names do not appear in the title of the impugned judgment and even otherwise they have not been specifically given any relief by the High Court, their non-impleadment would not render the appeal as incompetent.
10. So far as the application dated 26-4-1994 which was submitted through Syed Nazir Hussain Shah Kazmi, Advocate, is concerned, no decision hag been given by the High Court on the said application and, thus, it was neither accepted nor rejected; it transpires from the record that Syed Nazir Hussain Shah Kazmi, the counsel who submitted the application, or any of the land--owners who sought to be impleaded in the case never appeared in the Court and pressed the application nor any appeal was preferred by any of them before this Court. Therefore, the contention that they were party in the writ petition is incorrect. Consequently, the preliminary objections stand repelled.
11. Sh. Abdul Aziz, the learned counsel for the appellants, has contended that as the petitioners- respondents kept mum for 6 to 9 years and did not seek any relief after the dismissal of their appeals by the Additional Commissioner, the writ petitions should have been dismissed on the ground of laches. He has maintained that explanation given by the respondents for the condonation of the laches has No merits; the delay in filing writ petitions could not be condoned because the appellants were waiting for disposal of writ petitions filed by the other land-owners.
12. The learned counsel maintained that even if vires of a particular law is held to be violative of Constitution and as ab initio void, no relief can be given to all the persons who were adversely affected by the void statute unless they make a claim in that regard separately. He has maintained that even if the declaration at the instance of some of the owners of the land that restriction placed on the payment of compensation under section 7 of the Ordinance is violative of the Constitution would not ipso facto entitle other owners to claim payment at enhanced rate after delay of 6 to 9 years. As the petitioners-respondents had been sleeping over the matter, the laches could not be condoned on the ground that they were waiting for the outcome of the writ petition filed by other land-owners. The learned counsel also maintained that there is ample authority in support of the proposition that even if an order is void, a person who comes up with a writ petition challenging such an order, he must show that he acted promptly and did not remain indolent. The learned counsel for the appellants has also submitted that in any case the High Court has committed error in law by awarding interest on the compensation amount because in the instant case, the appellants could not be blamed for not paying the compensation at an early date; rather the delay in payment of the compensation amount was caused due to the litigation resorted to by the respondents in form of appeals to the Additional Commissioner and then by filing writ petitions after the expiry of a period of 6 to 9 years. The learned counsel strenuously argued that even if it is assumed for the sake of arguments that respondents could be shown some indulgence in condoning the laches in filing the writ petitions which occurred before the decision in the two writ petitions, referred to above, there is no explanation whatsoever for not filing the writ petitions immediately after the judgment of the High Court dated 4-7-1992. He has submitted that the writ petition in Appeal No. 77 of 1994 was filed after about seven months, writ petition in Appeal No. 78 of 1994 was filed after more than one year and writ petition in Appeal No. 79 of 1994 was filed after about nine months. Thus, according to the learned counsel for the appellants, the writ petitions filed by the respondents even otherwise suffered from laches. He has argued that the High Court has incorrectly observed in the impugned judgment that the writ petitions were filed `immediately' after the disposal of the aforesaid two writ petitions.
13. PLD 1963 Lah. 8 delay of 2-1/2 years was condoned because the petitioner wanted to take advantage of the changed view of the Supreme Court in a subsequent ruling.
14. PLD 1976 Kar. 119, it was observed that as an identical point was involved in other case pending before the Supreme Court, the petitioner rightly waited for its outcome, especially in view of the successive political changes in the country.
15. PLD 1994 Pesh. 211, it way observed that the question of laches in each case should be decided on the peculiar circumstances of the case and no hard and fast rule can be laid down in that regard.
16. It was further observed that as the factum of refusal to permit redemption of mortgage was a recurring wrong, the principle of laches was not attracted.
17. PLD 1994 Kar. 140, it was observed that principle of laches would not apply in case of an order which is ab initio void.
18. 1987 SCMR 1119, which was also referred to by the High Court, it was held by the Supreme Court of Pakistan that the question of laches cannot be equated with bar of limitation. It was further observed that although a writ petition against a void order can be dismissed for laches but while deciding such question it is necessary to consider the explanation for delay put forth by the party concerned. In this case the delay was condoned by Supreme Court on the ground that no objection was raised by the opposite-party regarding laches; furthermore, the explanation of the petitioner that time was consumed due to the correspondence between the concerned departments of the Government, was accepted as valid. The Supreme Court also observed that there are no hard and fast rule that in case of a Government department, the delay in filing a writ petition should be strictly explained.
19. PLD 1978 Quetta 61, it was held that as an order passed without jurisdiction is null and void, no question of delay arises in such a case. Thus, a writ petition cannot be dismissed on the ground of laches.
20. PLD 1993 Kar. 237, the scope of words `aggrieved person' used in Article 184(3) of the Pakistan Constitution was discussed and it was held that in order to qualify as an `aggrieved person' it is not necessary to prove violation of a right in strict juristic sense; a Constitutional petition can be maintained if the interests of concerned person have been prejudicially affected. It was further observed that the Constitutional petition should not be thrown out on the ground of laches without examining the claim of each of the parties in addition to examination of law and jurisdictional point involved in the case.
21. PLD 1993 Kar. 312, it was observed that bar of laches cannot be equated to the bar of limitation and, thus, when an order is void, the Court would have no hesitation in setting it aside despite the objection regarding laches.
22. We have given due consideration to the arguments advanced at Bar on the point of laches. The first point which needs determination is as to whether a writ petition against a void order can be dismissed on the point of laches. It may be observed that previously the view of this Court was that there is no question of laches or limitation in case of a void order but subsequent view of this Court as well as the Supreme Court of Pakistan on the point is that the question of limitation, or of laches in writ jurisdiction is relevant and a writ petition can be dismissed on that score. A reference may be made to the case reported as Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119, wherein it has been held that in case of a void order a writ petition can be dismissed on the ground of laches. This authority has also been referred to by the High Court in a different context. In this case, the laches in filing the writ petition was condoned on the ground that objection of laches was not raised by the opposite-party that writ entailed 'dismissal on the point of laches and that the ground for filing writ petition at a late stage was adverted to by the Court suo motu in course of arguments; besides, the explanation furnished by the petitioner for delay was not considered.
23. 1980 SCMR 711, it was observed that a writ petition against a void order can be dismissed on the ground of laches.
24. 1981 SCMR 740, the writ petition was dismissed because the same was hit by the principle of laches.
25. It is evident from the authorities, referred to above, that the authorities cited by the learned counsel for the respondents on the point of laches do not help him in view of later view of this Court and that of Supreme Court of Pakistan that a writ petition against a void order can be dismissed on the ground of laches. The authorities cited by the learned counsel for the respondents in cases of `continuing wrong' are also not applicable to the cases in hand because the present cases de not fall within the ambit of a continuing wrong'.
26. The next point which needs resolution is as to whether in the instant case the explanation by the petitioners-respondents that they filed the writ petitions after delay because they were waiting for the outcome of the writ petitions filed by other landowners, referred to above, is a valid explanation.
27. We have given our due consideration to the matter and we have come to the conclusion that the petitioners-respondents should have known that even if the relevant law was held by the High Court ultra vires of the Constitution, they could not get any relief as they were not party to the proceedings. Thus, even if the explanation is accepted as true, we are unable to subscribe to the view taken in the authorities relied upon by the learned counsel for the respondents. If we accept the explanation that laches in filing writ petition can be condoned on the ground that the concerned party was waiting for the decision of another identical case, then there would be no end to the litigation. Because other persons who were adversely affected by the offending provision of the Ordinance in the State may seek remedy by filing writ petitions and plead that they were waiting for the judgment of this Court on the point. Obviously, this would frustrate the very purpose of bar of laches in cases of writ jurisdiction. However, even otherwise, the writ petitions filed by the respondents must fail because as has been observed in the earlier part of the judgment, the present writ petitions were filed by the respondents after the expiry of 6 to 9 months from the date of the delivery of the judgment by the High Court in the two writ' petitions, referred to above. The learned counsel for the petitioners---respondents maintained that after the judgment of the High Court in the writ petitions filed by the other landowners, they issued a notice to the Government to pay them the amount of compensation at the rate of Rs. 40,000 per Kanal within a period of 15 days to one month but they did not oblige. Even if we subtract the period of one month from the period reckoned from the date of the judgment of the High Court in the said writ petitions, even then the writ petitions are belated by 5 to 8 months. There is no explanation whatsoever for the aforesaid delay and, thus, the writ petitions would still be hit by laches.
28. Before parting with the case we deem it proper to record our regret that we have taken away from the respondents the relief which had been given to them by the High Court although they have strong moral case. In recording our decision in the appeals, we have been guided by the technicalities of law by which Courts of law are bound. It is true that the respondents did not approach the Courts within reasonable time, but the fact also is that the Government was responsible for enacting a bad law. The present position now is that some of the persons from whom land was taken for the construction of the University premises have been paid at higher rates while the respondents are being paid muchless amount which is not adequate compensation. In these circumstances, the ends of justice would be served if the respondents are also paid due compensation by the concerned authorities.
29. The nutshell of the above discussion is that we accept all the above entitled appeal and set aside the impugned judgment of the High Court except that Abdul Aziz, who was petitioner in Writ Petition No. 33 of 1993 shall not be adversely affected by this judgment. In view of the circumstances of the case, we make no order as to the costs.