1990 PLP 1250 (MLD)

9. In the context of this situation Borhi and Qaim Din filed this Writ Petition challenging the validity of the order of the learned Settlement Commissioner dated 27‑6‑1966.

10. Learned counsel for the petitioner contended that the Settlement Commissioner had misconstrued and misapplied the provisions of section 19 of the Displaced Persons (Land Settlement) Act XLVII of 1958 which provided two revisions. It was argued that a Settlement Commissioner was empowered to revise the order of the Additional Settlement Commissioner or the Deputy Settlement Commissioner or an Assistant Settlement Commissioner under sub -clause (2) of section 19 of the Displaced Persons (Land Settlement) Act ibid. It was suggested that a bare reading of sub‑clause (2) made it abundantly clear that the approach and the conclusion of the Settlement Commissioner is totally wrong, illegal and without any legal efficacy. According to him, therefore, the order of the Settlement Commissioner impugned in this petition was totally void, coram non and merited to be struck down as such. He prayed that in view of the sub‑clause (2) of section 19 ibid the petition be accepted and the case be remanded to the Notified Officer to dispose of the petition in accordance with the law. .

11. In the second instance it was argued that section 19 ibid was amended by Displaced Persons Laws (Amendment) Ordinance (XIII of 1964) by which in section 19, subsection (1) and subsection (3) were omitted and in subsection (4) the word `Settlement Commissioner' was substituted for Chief Settlement Commissioner and Additional Settlement Commissioner. It was argued that the power of Settlement Commissioner as a revisional authority was kept intact. According to him therefore, the petitioners have instituted the revision petition before the Settlement Commissioner who was under an obligation to dispose of the revision petition on merits.

12. On the strength of this argument it was contended that the impugned order was completely devoid of legal efficacy.

13. In the third instance it was contended that the Deputy Settlement Commissioner was completely competent to take into consideration not only the record received from the Central Record Room but also documents obtained by the petitioners from India in accordance with law. Reliance was placed upon Article 78 subsection (5) of Qanun‑e‑Shahadat Order (1.0 of 1984). The strength was sought from the rule laid in Haji Ghulam Hussain v. Hamid Hassan Khan and another P L D 1969 Lah. 147.

14. In reply the learned counsel for the respondent supported the impugned decision. A preliminary objection was taken up to the effect that the impugned order was passed on 27‑6‑1966; that this petition was filed on 22‑8‑1972 i.e. after the lapse of approximately 6 years. The petition, therefore, merited to be dismissed on the ground of (aches.

15. It was next contended that the initial order of attestation of mutation was passed by the Assistant Rehabilitation Commissioner on 7‑1‑1953 and the first order of remand dated 8‑7‑1953 by the Deputy Rehabilitation Commissioner. Similarly another order of remand i.e. dated 15‑5‑1956 was passed by the Rehabilitation Authorities, therefore, it was clear that the proceedings relating to mutation of inheritance were conducted under the provisions of Pakistan Rehabilitation Act, 1956 (XLII of 1956). On the basis of this argument it was represented that the Pakistan Rehabilitation Act, 1956 only provided one revision petition under section 11 ibid. It was contended that the second revision was incompetent under Pakistan Rehabilitation Act, therefore, the Settlement Commissioner was completely justified to hold that he was incompetent to decide the revision petition.

16. Elaborating his submissions it was submitted that the causes had to be decided in consonance with the provisions of the law which existed at the time of accrual of cause of action.

17. It was finally represented that the Additional Settlement Commissioner was quite correct in refusing to admit into evidence the certified copies of the documents received from India which were not properly authenticated.

18. The arguments have been heard at length and the record has been examined with care.

19. There is no dispute that Mst. Akki and Mst. Munni are the widow and daughter of Karam Din right‑holder. The dispute relates to Qaim Din and Borhi only who claim to be sons of Amir the real brother of Karam Din the original right‑holder. Be that it may be the questions calling for consideration in this petition are:‑‑ (i) Whether the petition is hit by the principle of laches? (ii) Whether the impugned order of the Settlement Commissioner is legal and valid? (iii) Whether the proceedings were conducted under the provisions of Pakistan Rehabilitation Act, 1956 and so the Settlement Commissioner had no power of second revision in view of section 9 of the Pakistan Rehabilitation Act?

20. I will proceed hereon to determine the questions noted above arising from the submissions of the parties.

21. Taking up the first question it is to be noticed that the petitioner filed revision petition before the Settlement Commissioner who dismissed it on 27‑6‑1966. The petitioner immediately instituted the revision petition under section 21 of Act (XLVII of 1959). The revision petition was admitted to regular hearing. It was on 20‑4‑1972 that this petition was dismissed as being found incompetent. The prayer for conversion was also refused. Hereon the petitioner filed this Constitution petition.

22. The doctrine of (aches is the principle emerging from equity. No hard and fast rules can be laid down for this doctrine. A classic statement of laches was given in Lindsay Petroleum Company v. Prosper Armstrong Hurd, Abram Farewell and John Kemp (V Law Reports (Privy Council) 221) in following words:‑‑ "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases. arc, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

23. The same principle was affirmed in Muhammad Ismail Qureshi v. Gulab Din and others 1988 S C M R 1001 and Pakistan Post Office v. Settlement Commissioner and others 1987 S C M R 1119.

24. Applying these principles to the facts of this case I am clear in my mind that the petitioners did prosecute their cause with promptitude and without any negligence. He filed revision petition before this Court which was admitted to regular hearing and was found incompetent after 6 years. After the order of this Court the petitioners immediately filed this constitution petition. In the circumstances of the case the principle of laches is not applicable to the facts of this case as there was neither any negligence nor inaction or acquiescence in the prosecution of this case.

25. As far as the questions Nos. (ii) and (iii) are concerned they are to be dealt together. Pakistan Rehabilitation Act was enforced on 12‑11‑1956 in order to provide for the restoration and maintenance of the social and economic life of Pakistan and orderly settlement of the persons who had taken refuge therein. Under this Act, the West Pakistan Rehabilitation Settlement Scheme was framed and the displaced persons from India were allotted agricultural land left by the Hindus who migrated to India. The Rehabilitation Authorities were appointed under this Act in order to carry out the purpose of the Act. Later on Displaced Persons (Land Settlement) Act (XLVII of 1958) was promulgated in 1958 to provide for permanent settlement of displaced persons on land and for the matter incidental thereto or connected therewith.

26. Under this Act the Settlement Authorities were appointed in order to complete the permanent settlement Displaced Persons and Rehabilitation & Settlement Scheme of 1956 was adopted.

27. It is to be noticed that the Settlement Authority was defined under clause (6) of subsection (2) of Displaced Persons (Land Settlement) Act included Rehabilitation Authorities as well. It is clear from the examination of these two Acts that these Acts covered the same field. The Rehabilitation Act was intended to rehabilitate the displaced persons coming from India while the Displaced Persons (Land Settlement) Act, 1958 aimed to settle these allottees permanently in order to integrate them in the economic life of the nation without any hazards and doubts to their future. Therefore, I am clear in my mind that both the Acts with different fields had the common object; therefore, according to my view the provisions in Displaced Persons (Land Settlement) Act (XLVII of 1958) shall have a precedence over the Pakistan Rehabilitation Act (XLII of 1956) being later Act. 28. 1t is a settled canon of construction of law that whenever two affirmative enactments on the same subject are in field the later has a precedence over the previous Act. Dealing with this principle Craies in a celebrated book i.e. "Craies on Statute Law" laid down following rule:‑‑ "Where a new Act is couched in general affirmative language, and the previous law can well stand with it, and if the language used in the later Act is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. Thus an Act authorising trial by quarter sessions can stand with an earlier Act enacting that the offence should be tried by the Queen's Bench or at Assize. Section 4 of an 1875 Act which made carnally knowing a girl over twelve and under thirteen; with or without consent, a misdemeanour, was held not to prevent a conviction for felony (rape) under section 48 of the Offence against the Person Act 1861 on a 'girl between those ages. Again, Lord Claire said in Hyden V Carroll. "The two statutes will be considered as forming two distinct codes, and certainly may stand together". The rule was also fully discussed in Dr. Foster's Case "where the Court said that an Act pleaded in defence therein was all in the affirmative and therefore would not repeal or abrogate a previous affirmative law."

29. Similarly it is a settled principle that new statutory remedies given in the later law shall prevail. On the same subject the observations of Craies are of great benefit which are as follows:‑‑ "In R.V. Judge of Essex County Court, Esher M.R. laid it down as an ordinary rule of construction that "where the legislature has passed a new statute giving a new remedy, that remedy alone can be followed." But the phrase "new" as applied to a statute is either needless or ambiguous. The old distinction between vetera and nova statuta is obsolete; and "new" is insensible unless applied to statutes creating rights or remedies unknown to the common law or to previous enactments. And the rule could perhaps be more accurately laid down thus: In the case of an Act which creates a new jurisdiction; a new procedure, new forms, or new remedies, the procedure, forms, or remedies there prescribed, and no others, must be followed until altered by subsequent legislation."

30. Guided by these principles, I have no difficulty in my mind that 'the contention of the learned counsel for the respondents that the proceedings were governed by Pakistan Rehabilitation Act and so second revision was not competent is totally untenable and therefore is repelled. I am clear in my mind I that the Settlement revision before the Settlement Commissioner was completely competent.

31. In the light of the foregone analysis, I have no difficulty in reaching the conclusion that the order of the Settlement Commissioner dated 27‑6‑1966 is totally without jurisdiction, is in complete contravention of law noted above and therefore it cannot be sustained. Accordingly this petition is accepted and the impugned order is set aside.

32. In result the petition succeeds, the case is remanded to the Notified Officer who shall dispose of the revision of the petition on merit after hearing the submission of both the parties in accordance with law. A.A./M-2065/L Case remanded.