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---Ss. 8, 10 & 17--Provisional Constitution Order (1 of 1981), Art.9--Revisional Authority merely confirming order of authority below which was order wholly without jurisdiction having been passed in violation of provision of S. 8 of Act XIII of 1975--Revisional Authority also failing to notice that P.T.O. issued in favour of petitioner in respect of disputed property, which was cancelled by authority below, was protected under S. 10 of Act XIII of 1975--Order of Revisional authority as well as of authority below declared without lawful authority.

---Art.9--Laches--Petitioner filing constitutional petition against impugned order as soon as he came to know of final order--No laches, held, existed on part of petitioner.

---Art.9--Laches--CoAstitutional jurisdiction--Original order passed in case a nullity in eye of law--Delay in filing constitutional petition against such order, held, could not alone come in way of petitioner to disentitle him to extraord ni ary relief in constitutional jurisdiction.

Manzar Alam for Petitioner.

Abdul Fateh Malik for Respondents Nos. 2, 3 and 4.

Date of hearing: 11th February, 1985.

--The petitioner has challenged the orders passed by respondents Nos. 2 and 3, dated 22-1-1981 and 13-2-1982 respectively through this Constitutional Petition. The following facts may be stated here which are relevant for the decision of the petition.

Property bearing survey number 45 Ward No.4 situated in Danger Mohalla, Jacobabad,' was transferred to Imamuddin (Predecessor-in interest of the present petitioner) under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, 1958 (Act XXVIII 'of 1958) and a provisional transfer order was issued to him on 11-1-1960. Subsequently a permanent transfer deed was also issued in favour of said Imamuddin on 31-8-1965. Imamuddin died on 14-7-1971 and, thereafter, the propery was mutated in the name of present petitioner in the record-of-rights on 12-2-1977. It appears that respondent No.4 filed a petition under section 4(6) of Act 28 of 1958 before the Chief Settlement Commissioner for a declaration that the property transferred to Imamuddin is an Evacuee Trust Property. This petition was disposed of by respondent No.3 under section 8 of Act XIII of 1975 by order, dated 22-1-1981 and transfer in favour of Imamuddin was cancelled. The petitioner has categorically alleged that he received no notice in the above proceedings and in the comments filed by respondent. No.4 in the case it is stated that the case proceeded ex parte because of change in the law. The petitioner has further alleged that he came to know about the order of the Chairman on 26-7-1981 and, therefore, he applied for a copy of the said order and after obtaining the same filed a revision petition under section 17 of Act XIII of 1975 on 7-11-1981. This revision petition was dismissed by respondent No.2 on 13-12-1982 on the ground that it was not a properly filed case and was also time-barred. The petitioner has stated in his petition that this order of respondent No. 2 was also passed without notice to him and he came to know about this order on 20-3-1984 when he received demand for arrears of rent from 1-4-1960 to 29-2-1984.

The first contention of the learned counsel for the petitioner is that the order of respondent No. 3, dated 22-1-1981 is a void order as it was passed in violation of mandatory provisions of section 8 of Act XIII of 1975. It is contended by the learned counsel that the property could not be declared as a trust property without giving the person having interest in the property a reasonable opportunity of being heard. Section 8 of Act XIII of 1975 relied by the learned counsel reads as follows:-

8. Declaration of property as evacuee trust property.--(l) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.

(2) If the decision of the Chairman under subsection (1)

is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.

(3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof:

Provided that no declaration under subsection (2)

or order under subsection (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard,

From the material placed before us it is abundantly clear that the petitioner was not heard in the case by respondent No.3 before passing the order, dated 22-1-1981. We, therefore, feel no hesitation A in holding that the order, dated 22-1-1981 is wholly without jurisdiction. In so far the revisional order, dated 13-12-1982 is concerned, the petitioner categorically asserted that this order was also passed without notice and without hearing him. No counter-affidavit is filed by the respondents to controvert this statement of the petitioner. In the comments filed by respondent No. 4 in the case it is, however, stated B that the petitioner was duly served but niether the copy of notice nor any other document is filed to support the contention that the petitioner was served with the notice of date of hearing. In the absence of a counter-affidavit, the statement made by the petitioner on oath that he was not served with any notice in the case has gone unchallenged and in the circumstances of the case we find no reason to disbelieve the same. Apart from it the revisional authority merely confirmed the order of respondent No.3 which is an order wholly without jurisdiction having been passed in violation of the provisions of section 8 of Act XIII of 1975. In addition to it the revisional authority also failed to notice that in the present case the P.T.O. in respect of property in dispute was issued to late Imamuddin in the year 1965, and therefore, the transfer C was protected under section 10 of Act XIII of 1975. The learned counsel for the respondent contends that the question whether the property was bona fidely utilized for transfer under the Act was open to be considered by respondent No.3 while dealing with the case under section 8 of Act XIII of 1975. It is also contended by the learned counsel for the respondent that the present petition suffers from laches as it is Dfiled after about 3 years of cancellation of transfer of property. It is true that respondent No.3 while deciding the petition under section 8 could examine the question of bona fide utilization of property for purpose of transfer under Act 28 of 1958 but it is no body's case that the transfer in favour of Imamuddin was not a bona fide transfer. In fact a reading of the order of respondent No. 3 will show that the transfer in favour of Imamuddin was cancelled on the assumption that the property was not transferred permanently before 1968. In so far delay is concerned, the petitioner in his petition categorically alleged that the order, dated 31-1-1982 was passed without notice to him. This sworn statement of the petitioner has not been controverted by any counter-affidavit on behalf of the respondent. The petitioner filed the present petition as soon as he came to know of the order and as such there were no laches on his part. It may also be mentioned here that the original order passed in the case is a nullity in the eye of law and as such in the circumstances of the present case delay alone could not come in the way of petitioner to disentitle him to the extraordinary relief in the constitutional jurisdiction. For the aforesaid reason we accept this petition declare the two orders, dated 22-1-1981 and 13-12-1982 passed by respondents Nos. 2 and 3, 'respectively as without lawful authority. There will, however be no order as to cost in the circumstances of this case.

M.Y.H. Petition accepted.