KHAWAJA MUHAMMAD SAEED, J.---This appeal with the leave of the Court is directed against the judgment of the High Court dated 22-6-2002, whereby while allowing the writ petition filed by the contesting respondents, the judgment passed by the Custodian of Evacuee Property on 25---4- 1998 was set aside.
2. The facts forming the background of present appeal precisely stated are that out of land comprising Survey No. 1034. "Abadi Deh". Of village Panjera, Tehsil Kotli, land measuring 7 Marlas was allotted to Muhammad Khan who happened to be the predecessor-in-interest of the contesting respondents. The case of Muhammad Khan was that after obtaining allotment, he had constructed a house in the disputed land. Now under to new scale which was applied in the recent settlement, the acreage of land has reduced from seven Marlas to five Marlas out of which admittedly one Marla came under the road. Muhammad Khan, deceased, on the basis of this allotment order obtained proprietary rights from the Custodian on 26-3-1985. The appellant, herein, filed a review petition before the Custodian against the grant of proprietary rights to Muhammad Khan to the extent of above mentioned land. During the pendency of his review petition, Muhammad Khan died and was survived by his legal representatives, the contesting respondents in the present appeal. The contesting respondents also moved an application before the Custodian of Evacuee Property by invoking his powers under section 18-B of the Pakistan Administration of Evacuee Property Act (hereinafter to be referred as the Act) seeking cancellation of allotment order passed in favour of the appellant on the ground that the land was already allotted to their predecessor-in---interest, Muhammad Khan, for residential purposes, as such, was not available for allotment. Therefore the proprietary rights obtained by the appellant, herein, were bad in law and liable to be set aside. As the property in dispute and the parties to the litigation were common, the learned Custodian, therefore, felt appropriate to consolidate both the review petitions filed by the appellant and the application moved by the contesting respondents under section 18-B of the Act and after conducting detailed inquiry disposed them of through a consolidated order dated 25-4-1998. The application moved by the contesting respondents seeking cancellation of the allotment of the appellant, herein, was dismissed by the learned Custodian whereas while allowing the review petition filed by the appellant, he recalled the proprietary rights granted to the predecessor---in-interest of the contesting respondents, namely, Muhammad Khan, deceased, on 26-3-1985 to the extent of land in dispute.
3. The respondents invoked the Constitutional jurisdiction of the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 in order to assail the above-referred order of Custodian. The learned Judge in the High Court, after taking necessary proceedings, as 'required by law, finally allowed the writ petition of the respondents and set aside the order passed by the learned Custodian on 25-4-1998 and restored the allotment of disputed property in the name of respondents.
4. Ch. Reaz Alam, the learned counsel for the appellant, argued that the learned Judge in the High Court was not justified in law to assume the role of the Appellate Court against the judgment of the Custodian having exclusive jurisdiction particularly when it is the result of true facts and passed on cogent and sound reasons. According to him. Admittedly the land in dispute was allotted to Muhammad Khan out of "Abadi Deh" for his residential needs but he preferred another place and later on obtained the allotment of that place which was more than one Kanal. He constructed a house thereon and shifted to that place where his family is now permanently settled. The appellant moved an application for the allotment of the disputed land. A notice was issued to Muhammad Khan, deceased-allottee. Which was served upon him. He stated on the backside of the notice that he had no objection if the disputed portion of "Abadi Deh" is allotted to the appellant for his residential needs. The deceased allottee did not appear before the Tehsildar, Kotli, who had summoned him on the date fixed for this purpose. Under these circumstances, the Tehsildar recommended the allotment of the land in the name of the appellant. The A.R.C. While canceling the allotment of Muhammad Khan, deceased gave sanction to the recommendations by an order of allotment in favour of the appellant. The Custodian recorded the evidence of the parties and conducted inquiry as to whether any notice was served upon Muhammad Khan, deceased? In the light of the evidence produced by the appellant particularly the statement of Ashfaque Ahmad.
The son of the deceased, Muhammad Khan, the sole witness who appeared on behalf of the respondent the learned Custodian drew this conclusion that Muhammad Khan had abandoned the disputed portion of "Abadi Deh" land which was subsequently allotted to the appellant who has constructed a residential building for him and is residing therein. According to the learned counsel, the Custodian had the exclusive competence to conduct an inquiry through himself or through any person subordinate to him. In this case, the Custodian himself conducted the inquiry and approved the previous proceedings which were conducted by the Tehsildar, Kotli, on the application of the appellant seeking allotment of the disputed land and approved the finding that in fact Muhammad Khan himself surrendered this land and opted for the allotment of another land out of "Abadi Deh" where he later on constructed a residential building in which he remained residing during his lifetime and now is under the occupation and use of the contesting respondents who are his legal descendants. The learned counsel placed reliance on a case reported as Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2000 YLR 2386 wherein it is laid down that it is settled proposition of law that findings of fact recorded by a Tribunal of exclusive jurisdiction, as the Custodian of Evacuee Property admittedly is, are sacrosanct and cannot be set aside in exercise of writ jurisdiction unless it is a case -of no evidence or the conclusions are against the evidence before it.
5. The learned counsel also contended that the writ petition was filed almost after even months period before the High Court. Therefore, same was hit by laches and liable to be dismissed on this sole ground without entering into the merits of the case. He, in this regard, placed reliance on an authority of this Court in a case titled Azad Government of the State of J&K and others v. Haji Summandar Khan and others 1995 M LD 1350, whereby it is laid down that previously the view was that a writ petition against a void order cannot he dismissed on the point of laches as the question of laches or limitation is irrelevant against a void order. After discussing a number of authorities on the subject, it was held that a writ petition can be dismissed on the point of laches even if the order is void. In that case the writ petitions were filed after five to eight months. Therefore, those were dismissed by this Court on the ground of laches.
The learned counsel for the appellant also placed reliance on a case reported as Nazar Hussain and 4 others v. Mst. Azmat Bibi and 9 others 2002 SCR 150 wherein it is laid. Down that delay is fatal in writ jurisdiction if satisfactory explanation is not given for such a delay.
6. On the other hand, Raja Hassan Akhtar, the learned counsel for the respondents, argued that his clients in para. 11 of the writ petition submitted in detail the explanation for delay in invoking the writ jurisdiction of the High Court. Therefore, the learned Judge in the High Court rightly declined to dismiss the writ petition on this ground. He further argued that Tehsildar. Kotli, was not justified in law in conducting the inquiry as to whether Muhammad Khan had surrendered his previous allotment rights about the land in dispute or not. In the same way, the order of cancellation of allotment was passed by A.R.C. Who was not legally competent to pass such an order. Therefore, without cancellation of allotment by the competent authority, the order of allotment subsequently obtained by the appellant on 8-2-1963 is a nullity in the eye of law conferring no right upon him.
The reliance was placed on a case titled Amir Muhammad v. Custodian of Evacuee Property, Muzaffarabad and others Civil Appeal No.53 of 1992 decided on 16-12-1992.
7. While exercising his right of rebuttal, the learned counsel for the appellant argued that in the present case the allotment of Muhammad Khan, deceased, was cancelled by the A.R.C. On the recommendations of Tehsildar who had submitted his recommendations in the light of the reply made by Muhammad Khan to the notice which was issued to him for appearance before him. If there would have been no order of cancellation of allotment, even then the A.R.C. Was competent to re-allot the land to the appellant in the light of peculiar facts of this case. Reliance was placed upon two cases of this Court titled Bashir Ahmad Khan v. Custodian, Evacuee Property, Azad Jammu and Kashmir, Muzaffarabad and 2 others PLD 1987 SC (AJ&K) 118 and Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2000 YLR 2386.
8. We have considered the respective arguments of the learned counsel for the parties and gone through the record. In this case, admittedly, initially Muhammad Khan obtained the allotment of seven Marlas of land from "Abadi Deh" land for his residential requirements. There was a school which was constructed on "Abadi Deh" area. The school was shifted to another place. Muhammad Khan, deceased, applied for the allotment of the place which was previously under the use of school. That land was allotted to him. The appellant applied for the allotment of disputed land. The Patwari, in his note submitted to Tehsildar, mentioned that the land was allotted to Muhammad Khan but he had abandoned the same and has opted another place, therefore, this land may be allotted to the appellant. On this note, a notice was issued to Muhammad Khan for objections by the Tehsildar which reads as under:--- On the date fixed by Tehsildar, Muhammad Khan failed to appear before Tehsildar, as such, he submitted his recommendations to A.R.C. For the allotment of land in the name of the appellant.
The A.R.C. Cancelled the allotment of. Muhammad Khan and gave approval to the recommendations for the allotment of land in dispute to the appellant. Muhammad Khan challenged this allotment after the lapse of three years. The case of the appellant as set up in the written- statement before the High Court was that even though Muhammad Khan, deceased, had abandoned the land in dispute and it was allotted to him on account of consent of Muhammad Khan, deceased, but due to hike in the price of land in Kotli District, the deceased, Muhammad Khan, challenged his allotment and started these proceedings. It has been held by this Court in cases reported as Bashir Ahmad Khan v. Custodian, Evacuee Property, Azad Jammu and Kashmir, Muzaffarabad and 2 others PLD 1987 SC (.AJ&K) 118 and Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2000 YLR 2386 that in case of surrender or abandonment of an allotment, the Rehabilitation Authorities are competent to allot an evacuee land without formal order of cancellation of previous allotment. In the present case, we have noticed that the learned Custodian, in the light of above-referred documentary evidence which was available before him, and the evidence produced by the parties for and against their respective claim, recorded his finding that Muhammad Khan had surrendered his allotment to the extent of land in dispute. A question of tact resolved by a Tribunal of exclusive jurisdiction cannot be set aside by the High Court in exercise of its writ jurisdiction by substituting such findings by its own. It can interfere only in exercise of it; writ jurisdiction if the finding is based on no evidence or is against the evidence available or the record. Therefore, in our view the High Court was not justified to sit a Court of appeal over the finding of the Custodian and substitute its own finding in place of finding recorded by the Custodian.
9. In this case the decision was announced by the Custodian, in presence of the counsel for the parties. We have repeatedly laid down that knowledge of then counsel is the knowledge of the party. If any/authority on this subject is required, the case titled Chairman, AJ&K Council v. Abdul Latif and 5 others 1997 M LD 2926 can be referred. In the present case there is no affidavit of the counsel for the respondents that the judgment was not announced in his presence nor he has filed any affidavit that lie could not convey the decision to the contesting respondents in time. The respondents, in their writ petition, have not mentioned the date when they got the knowledge of the decision of the Custodian 'nor the source through which they got the information that decision has been given against them by the Custodian. The vague pleading in this regard even supported by a' vague affidavit, in our view, does not furnish sufficient cause for the condonation of delay in lodging a writ petition in the High Court. The writ petition, therefore, was suffering from laches and was liable to be dismissed on this ground.