MUHAMMAD NAWAZ ABBASI. J.---This appeal by leave of the Court has been directed against the judgment dated 11-3-1998 passed by a learned Single Judge of Lahore High Court, Lahore, in Writ Petition No,100-R of 1997 filed by present appellants against Government of Punjab and others. The leave was granted in this appeal vide order, dated 17-2-1999 to consider the following question:-- "4. After hearing the learned counsel for the petitioners at some length,, we are inclined to grant leave to consider whether the learned Judge' in Chamber was justified in not noticing the law declared by this Court in Province of Punjab (supra) and that too on the alleged failure on the part of the petitioners to resort to the Constitutional jurisdiction of the High Court with inordinate delay which was inconsequential even if applicable in the case in that the hearing of the case on merits would have to be regulated in terms of the law declared by this Court and followed by all concerned, up to the level of the High Court."
2. The facts in the background are that the land in possession of Forest Department was allotted to displaced person from Jammu and Kashmir by Deputy Settlement Commissioner of Khata RL-H against their verified claim on 31-10-1964 and the allottees of the abovesaid land sold an area of land measuring 392 Kanals and 15 Marlas to different persons including the present appellants.
Subsequently on an application moved by the Divisional Forest Officer, Sialkot in 1969, under section 10 and 11 of Displaced Persons (Land Settlement) Act, 1958, the Settlement Commissioner cancelled the allotment vide order dated 25-3-1972. The present appellants and others filed an appeal against the order of cancellation of allotment before the Chief Settlement Commissioner, who dismissed their appeal vide order, dated31-10-1977. The co-appellants, of the present appellants challenged the order of Chief Settlement Commissioner through the writ petitions bearing Nos.115-R and 116-R of 1992 in the Lahore High Court, Lahore, and the writ petitions were allowed by a learned Single Judge of the High Court vide judgment dated 6-5-1996 wherein the- orders dated 25-3-1972 and 31-10-1977 passed by the Settlement and Chief 'Settlement Commissioner respectively, were declared illegal and to have been passed without lawful authority. The Province of Punjab, through the Forest Department assailed the judgment, of the High Court before this Court through Civil Petitions Nos.1982 and 1983 of 1996 which were dismissed by this Court vide judgment dated 18-3-1997. Meanwhile the Deputy Commissioner Collector, Sialkot.
In pursuance of the order of Chief Settlement Commissioner, directed for cancellation of the mutation. Sanctioned in the name of appellants and consequently. The concerned revenue officer after cancelling the mutation incorporated the name of Provincial Government in the column of ownership in the Revenue Record with the possession of Forest Department in the column of "cultivation". He present appellants were also aggrieved of the order of Chief Settler: tent Commissioner out they neither filed a separate petition nor became 'arty in the Writ Petitions Nos.115-R and 116-R of 1992. Decided by the High Court vide judgment dated 6-5-1996. However, they on coming to know about the subsequent development filed a writ petition bearing No,100-R of 1997 in the High Court against the order of Chief Settlement Commissioner on the basis of decision in Writ Petitions Nos.115-R and 116-R of 1992 taking the plea that delay in tiling the writ petition would not affect their rights in the land already recognized in the judgment given in Writ Petitions No,115-R and 116-R of 1992 and that only a formal order of enforcement of said rights was to be passed. However, the explanation offered by them was that Maqsooda Begum, their predecessor-in-interest who tiled appeal before the Chief Settlement Commissioner for lack of knowledge of dismissal of her appeal remained under the impression that same was still pending but later they on coming to know about the .Acceptance of the Writ Petitions Nos.115-R and 116-R of 1992 by the High Court against the order passed by the Chief Settlement Commissioner through which he dismissed all appeals against the order of cancellation of allotment passed by the Settlement Commissioner, filed the writ petition.
3. Learned counsel for the appellants has questioned the legality of the impugned judgment firstly on the ground that the judgment passed by the High Court in Writ Petitions Nos.115-R and 116-R of 1992 declaring the order dated 31-10-1977 of the Chief Settlement Commissioner as illegal and without jurisdiction, was upheld by this Court vide judgment dated 18-3-1997 in Civil Petitions Nos.1982 and 1983 of 1996 and in consequence thereto not only the allotment of land in the name of original allottees stood restored but the title of appellants as vendees of the suit land. Would also be protected. Secondly, the appellants had tiled the writ petition, as an abundant caution and to avoid any complication as they were not party in the writ petitions in which the order of Chief Settlement Commissioner was set aside by the High Court, therefore, the delay in tiling the writ petition, for the relief which has already peen given by the High Court. Would be of no consequence in view of the law laid down by this Court in Quetta Hindu Panchayat v. DiMad Akhta (1993 SCMR 21); Pakistan Post Office v. Settlement Commissioner (1987 SCMR 1119). Thirdly the learned counsel while placing reliance on Province of Punjab v. Muhammad Mahmood Shah (1991 SCMR 1426) contended that the Chief Settlement Commissioner under paragraph 4-A of the Rehabilitation and Settlement Scheme could cancel an allotment which was made in violation of the directive dated 27-2-1965 but the cancellation of allotment made before 27-2-1965 would be without lawful authority. In the above-referred case, it was held by this Court that Chief Settlement Commissioner had power to direct exclusion of land from allotment where it was required for a public purpose and while excluding the land in question, by his directive dated 27-2-1965, the Chief Settlement Commissioner was acting within his lawful authority. The allotments finalized before 27-2-1965 would thus hold good whereas the allotments made after 27-2-1965 were in violation of prohibitory order of Chief Settlement Commissioner and could not thus be sustained. Para. 4-A of the Rehabilitation Settlement Scheme reads as under:-- "4-A. The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the Scheme:--
(i) Urban land;
(ii) Land mortgaged with possession by evacuees in favour of Muslim Mortgagees except where a claimant is prepared to secure an allotment of such land in its encumbered state without demanding any additional compensation on account of such an encumbrance;
(iii) Land attached to evacuee charitable, religious and educational trusts;
(iv) Land reserved for expansion of village Abadis and other public purposes;
(v) deleted;
(vi) deleted;
(vii) deleted; (viii)Evacuee land under Muslim Occupancy Tenants. And
(ix) Land allotted on temporary basis to Janunu and Kashmir Refugees."
3-A. Before tiling of writ petitions bearing Nos.115-R and 116-R of 1992 against the order, dated 31-10- 1977 passed by Chief Settlement Commissioner, the Supreme Court in Civil Petition No,387-L of 1991 filed by the Province of Punjab against the judgment dated 27-2-1991 passed by the Lahore High Court in Writ Petition No,479-R of 1980 in which the claim of Province of Punjab was that land in possession of Forest and Wildlife Department of the Government of Punjab was acquired for the use of said department, vide judgment dated 26-11-1991 held that the allotment of evacuee land made prior to 27-2-1965 was not liable to be cancelled in terms of para. 4 of the Rehabilitation and Settlement Scheme under the directive of Chief Settlement Commissioner dated 27-2-1965. The above view was reaffirmed in Civil Appeal No,159 of 1992 vide judgment dated 22-6-1994 arising out of Writ Petition No,188-R of 1986 and Civil Petitions Nos.1982 and 1983 of 1996 which were dismissed vide judgment dated 18-3-1997 preferred against the judgment of the Lahore High Court in Writ Petitions No,115-R and 116-R of 1992. It was held by this Court in the above judgment as under:- "4. Objection as to laches was repelled by the learned Judge on the ground that when disposing of earlier Writ Petition No,655-R of 1980 tiled by the respondents vide order dated 23-2-1983, the High Court had permitted them to resort to any remedy available to them if they had any grievance after 8-6-1982. The learned Judge was also of the view that since on similar facts writ petitioners before him had already been granted the relief, 'this objection cannot be allowed to stand in the way of substantial justice'.
5. Learned counsel appearing in support of these petitions, like the Additional Advocate-General appearing in the High Court, has quite fairly conceded that he cannot support the orders of Settlement Authorities cancelling the allotments of the respondents Ali Akbar and Nur Muhammad which having been made prior to 27-2-1965 were protected in view of the law declared by this Court in the case of Province of Punjab v. Muhammad Mahmood Shah and others (1991 SCMR 1426) and in Civil Appeal No,159 of 1992 arising from Writ Petition No,188-R of 1996 (supra). Learned counsel, however, sought to press the plea of laches contending that the writ petitions filed in 1992 to challenge the orders passed by the Settlement Authorities in 1972/1977 suffered from gross laches which could not be condoned by the order dated 23-2-1983 passed in the respondents earlier Writ Petition No,655-R of 1980. This objection has been duly dealt with the repelled by the learned Judge in the High Court adequately and with good reasons. We are, in any case, not inclined to interfere with the impugned order of the High Court with reference to the plea of laches as on the admitted facts, the allotments in favour of Ali Akbar and Nur Muhammad respondents were made prior to the target date and the same were, therefore, immune from challenge in view of the law declared by this Court in the afore-referred cases. Leave to appeal sought by the petitioners is, therefore, refused and the petitions are dismissed."
5. In view of legal position hereinbefore, the sole question for determination in the present appeal would be as to whether the present appellants despite being not party in the writ petition bearing Nos.115-R and 116-R of 1992 before the High Court in which the order passed by the Chief Settlement Commissioner in their appeals against the order of cancellation of allotment of land purchased by them, was set aside vide judgment dated 5-6-1996 would not be benefited and the writ petition filed by them subsequent to the disposal of Writ Petitions Nos.115-R and 116-R of 1992 against the same order of Chief Settlement Commissioner on the ground of laches, was proper and legal.
6. There is no cavil to the proposition that judicial determination of the dispute if relates exclusively to the rights of the parties in the proceedings, the same shall be binding only inter se parties but if the verdict given in the judicial determination relates to the declaration of law, it shall not be confined to the parties but all shall be benefited and thus the law declared through a judgment would be applicable to all aggrieved persons even if some of them were not party in the proceedings in which the judgment was passed but such declaration of law shall have no retrospective effect to be used to reopen the matter finally concluded and the case in which the decisions have attained finality. It is thus a settled principle of law that an action in which claim of ownership was made against all, the judgment pronounced in such action, would be applicable to all but if the action was brought against a particular person, it was held in Pir Bakhsh v. Chairman, Allotment Committee (PLD 1987 SC 145) as under:-- "Upon a consideration of what has been stated above, the formulation on behalf of the appellants cannot be accepted as it stands. In a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on; question of fact and law, but as to what the Court decides generally is the ratio. Decidendi which is applicable to subsequent cases presenting the same problem between third parties not involved in the original case nor will either of the original parties be bound in a subsequent dispute with a third party. It will be misnomer to say that this rule of law acts in rem,. That is, as against the whole world as conceptually the applicability of the rule of law is either founded on the doctrine of precedent as under the English law or rule of stare decision, and none of the doctrine in its application is inflexible for what has been recalled elsewhere in the judgment. Therefore, the judgment cannot act in rem as is sought to be argued. The High Court in dislodging the appellants held that the judgment of the Supreme Court was not a judgment in rem, but in personam. The terms 'in rem' and 'in personam' are of Roman Law used in connection with action, that is, action in rem and action in personam to denote the nature of actions and with the disappearance of the Roman form of procedure, each of the two terms in rem' and 'in personam' got tagged with the word judgments to denote the end-products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them." The order relating to the cancellation of allotment made under Displaced Persons (Land Settlement) Act 1958 in favour of vendor of the appellants was set aside by the High Court vide judgment dated 6-5-1996 passed in Writ Petitions Nos.115-R and 116-R of 1992 and this Court in the light of law laid down in Province of Punjab v. Muhammad Mahmood (1991 SCMR 1426) upheld the above judgment of the High Court in Civil Petitions Nos.1982 and 1983 of 1996 vide judgment dated 18-3-1997. It was observed by this Court in Civil Petitions Nos.1982 and 1983 of 1996 vide judgment dated 18-3-1997. I was observed by this Court in para. 9 of the judgment in Province of Punjab, supra, as under:- "9. Under paragraph 4-A of the Rehabilitation Settlement Scheme, the Chief Settlement Commissioner had the power to direct the exclusion of land from allotment where it was required for a public purpose. While so excluding by his directive dated 27-2-1965, the Chief Settlement commissioner was acting within this lawful authority. The High Court, however, did not approve of it is a case (Civil Appeal No,115 of 1983) where the allotment had been made for the first time on 18-4- 1968, by observing as hereunder:-- The main ground on which the Settlement Commissioner set aside the allotment of the petitioners was the order of the Chief Settlement Commissioner dated 27-2-1965 mentioned above restraining the district authorities from allotting such lands as were in possession of the Forest Department.
The copy of the Jamabandi for the year 1965-66, however, shows that the possession over some of the land in question at that time was that of the petitioners but he did not go into the same. In any case it has recently been held by a Division Bench of this Court in Inayat Bibi and others v. Assistant Settlement Commissioner and Chief Settlement Commissioner PLD 1978 Lah. 252 that the Chief Settlement Commissioner could not issue such instructions retraining statutory functionaries to allot land against the claims. The letter dated 27th February, 1965 is thus without lawful authority and of no legal effect' ."
10. The decision referred to and relied upon for recording the above findings related to absolute prohibition against making allotments and not qualified prohibition as is contained in paragraph 4-A of the Rehabilitation Settlement Scheme. Hence, the very basis for the decision is incorrect. In a decision of this Court in Muhammad Ayub and others v. The Province of Punjab (1989 SCMR 1033), the allotments made on 1-3-1966 were held to be violative of the directive of the Chief Settlement Commissioner dated 27-2-1965. The law point involved in all these cases has received an authoritative pronouncement in Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252 in the following words:-- "It is necessary in my view to keep in mind that there is a distinction between the right to claim a transfer and the right to the transfer and the right the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until a final order of transfer has been made it.Cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that change in the mode of disposal will not affect it, on the principle that change in the mode of transfer cannot reopen a past and closed transaction."
7. The learned counsel for the Forest Department when confronted with the above legal position, he candidly conceded that the allotments which were made prior to 27-2-1965, would be protected by the law laid down by this Court in the judgments referred above and that the judgment of the High Court by virtue of which the order of cancellation of allotment of the vendorof present appellants, was declared illegal was upheld in Civil Petitions Nos.1982 and 1983 of 1996 on the basis of law laid down by this Court in (1991 SCMR 1426), according to which the rights of the allottees of the land prior to 27-2-1965 were protected and conclusively determined the appeal of the present appellants was dismissed by the Chief Settlement Commissioner along with the appeals of petitioners in Writ Petitions Nos.115-R and 116-R of 1992 and the only distinguishable feature of their case was that the appellants challenged the order of Chief Settlement Commissioner through a separate Constitution petition after the disposal of above said two writ petitions which was dismissed on the ground of laches.
This is correct that in absence of any declaration of law made in a judgment, a person may not be able to protect his title in the property on the basis of said judgment but if the right of a person in property is protected by the law declared in an earlier judgment, such person cannot be non- suited and deprived of his right in the property merely on the ground of !Aches. Thus the dismissal of the writ petition of the present appellants in the given circumstances on the ground of laches.
Would amount to del live them from their rights already recognized in law and further that the order of the Chief Settlement Commissioner to the extent of land purchased by them, was valid.
The learned, counsel appearing on behalf of the Settlement Department without giving a satisfactory answer to the question as to whether the order, dated 31-10-1977 passed by the Chief Settlement Commissioner was still holding field qua the allotment pertaining to the land purchased by the appellants, submitted that since the appellants did not challenge the said order for a considerable period, therefore, the discretionary relief in writ petition was rightly, refused to them on the ground of laches.
8. The appellants sought a simple declaration in their writ petition in the light of judgment in Writ Petitions Nos.115-R and 116-R of 1992 in which, the order challenged by them had already been declared illegal and to have been passed without lawful authority. This is the settled principle of law that the bar of laches cannot be equated with statutory bar of limitation as the laches operate in equity and in case of laches, the dictates of justice and equity are to be weighed as the legitimate rights cannot be denied on the ground of laches unless it is found that it will cause injustice to the opposite-party but a person can be non-suited on the basis of laches if due to his negligence, rights were created in favour of opposite-party. The order affecting the rights of a person besides being illegal if is also found unjust and improper, notwithstanding the laches, can be set aside by the High Court in writ jurisdiction as the injustice cannot be allowed to he perpetuated on the technical grounds. The non-suiting a person in discretionary jurisdiction of writ petition merely on the ground of laches without determining the nature of his right may cause injustice to him, therefore, the discretion should not be exercised by the Court in aid of injustice and should examine the dictates of justice in claim of each party in addition to the examination of law and the question of jurisdiction as an obligation. There is sufficient case-law on the question of condonation of laches of more than a decade and the dismissal of the writ petition on the ground of delay of few months, therefore, no hard and fast rule can be fair down for application of the principle of laches. In the present case.We in the light of peculiar facts of the case, find that the judgment of the High court would not demonstrate that the relief being sought by the appellants, if would have been granted to them. It would be an action in aid of injustice. The case of the appellants being not distinguishable to that of the petitioners in Writ Petitions Nos.115-R and 116-R of 1992 on merits.The refusal of same to them by dismissing their writ petition on the ground of laches would amount to defeat the concept of equitable justice on technical grounds. It was held in Ardeshir Cowasjee v. Multiline Associates (PLD 1993 Karachi 237) as under:- "29. The law as to laches is based on the maxim acquit as subgenre - - equity helps the wakeful, not the slumbering. Laches signify laziness in pursuing a legal remedy. In the case of M.H. Abidi v.
State Life Insurance Corporation (1990 MLD 563), a Division Bench of this Court while repelling a plea in regard to laches observed as follows:-- " Laches is not the same thing as limitation. It is not every grievance, which requires to be promptly ventilated and pursued in a legal forum. Litigation is to be availed rather than invited. Whether or not limitation is provided, before recourse to law is taken, an aggrieved person has to be sure that a point of no return has reached and that redress must be sought. However, where limitation is invokeable he must act within prescribed period. But no period, as may constitute laches.Can be quantified. In the absence of a bar of limitation, the period within which remedy is' to be sought has, however, invariably to be a reasonable one. Element of due diligence is also to be reconciled.
What is more, delay should never be such as to generate a belief or situation of abandonment of the right because, then, vested right comes into operation and cannot be deviated from. Still, whether or not laches is involved in a particular case depends on the facts of such case. But, it is only when a right is firmly and finally repudiated, leaving not legitimate scope for retraction that, in absence of a bar of limitation, a person is obliged to resort' to legal proceedings. In the instant case, even though the petitioner was refused accommodation, he considered the matter to be worth a further try. At the level of the State run enterprise itself. Resorted to a repeat representation, which he promptly made, which was acknowledged to be pending all the time and which was, finally, turned down on 20-1-1980. This, therefore, is not a case of laches," In Pakistan Post Office v. Settlement Commissioner and others (1987 SCMR 1119) it was observed as under:-- "It needs to be emphasized 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 a 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 relaxations 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."
9. Learned counsel representing the Province of Punjab and Forest Department while placing reliance on Azad Government of the State J & K and others v. Ch. Muhammad Din (1995 MLD 1350) submitted that the appellants would not be entitled to any relief in the given circumstances and the High Court rightly dismissed their petition on the ground of laches. The High Court could refuse the discretionary relief in the writ jurisdiction on the ground of laches but bar of laches would not deny the grant of right or seeking of the remedy unless it is found that the grant of relief may cause injustice to another party. There is no cavil to the proposition that the writ petition even against a void order, can be dismissed on the ground of laches but this rule cannot be applied in every case as a mandatory rule. The above-referred judgment cited by the learned counsel for the respondents to canvass the ground of laches being distinguishable in the facts of the present case, would not be of any help to the respondents.
10. Learned counsel representing the Forest Department has submitted that in view of the location of the land it was proposed to be kept for the use of army, therefore. Notwithstanding the setting aside of the order of cancellation of allotment of the original allottee by the High Court which attained finality by virtue of order of this Court. The appellants who were not party in the proceedings in which the order was set aside, would not be benefited by the judgment in question and the order passed by the Chief Settlement Commissioner would remain in field to their extent.
The perusal of letter dated 3-3-1990 sent to the Assistant Commissioner, Pasrur, by the Deputy Commissioner/Collector, Sialkot available at page 95 of the Paper Book, would show that there was a proposal for establishment of a Cadet College in the area and the land was required for establishing the College. The land in question if was required by the Government for defence purpose or for any other public purpose, there was no bar for its acquisition under the law. The Government if is in need of the land for use of a public can still acquire it in accordance with law.
11. We having examined the contentions raised by the learned counsel for the parties in the light of law laid down in the judgments referred above and the judgment of this Court in Civil Petitions Nos.1982 and 1983 of 1996 on the same subject, are of the considered view that in the peculiar circumstances of the present case the dictate of justice demanded disposal of writ petitions on merits. The statutes of appellants as vendee of the original allottee being not in dispute, they would stand at par to that of writ petitioners in Writ Petitions Nos.115-R and 116-R of 1992 and would be entitled to the same relief in terms of law laid down by this Court in Province of Punjab v.
Muhammad Mahmood Shah. Supra. Which would equally be benefited to them as the allotment in their case was made before 27-2-1965, therefore, the dismissal of their writ petition on the ground of laches would not only be illegal but also unjust and improper.
13. For the foregoing reasons, we set aside the impugned judgment and allow this appeal with no order as to costs.