Shah Jehan Khan Yousafzai, J.--Writ Petition No, 924 of 2002 and Writ Petition No, 1074/2002 involving the same legal question and having arisen from the same impugned judgment dated 6.5.2002 are being disposed of by this single judgment.
2. Facts in brief are that on the merger of Dir State into the territory of Pakistan the then Ruler was removed through Regulation No, 1 of 1969 with effect from 15.8.1969. Under Section 3 of the said Regulation a Commission was constituted on 8.10.1970 through Notification No, 66S0 (SPL)/HD-70.
Subsequently the then Martial Law Authority issued M.L.R. 122 and M.L.R. 123 in the year 1972. Section 3 in both the Regulations read as follows:-- M.L.R. 122.
"3. The Provincial Government, on the basis of the recommendations of the Commission and subject to any directive given by the Federal Government shall, by order notified in the official Gazette, determine-
(a) what property is State property of the former States of Dir and Swat respectively;
(b) what property is private or personal property of the late Nawab Sir Shehjehan Khan, Ex-Ruler of the former State of Dir, and the late Sir Abdul Wadud Mian Gul Sahibzada, K.B.E., Badshah Sahib of the former State of Swat respectively;
(c) the respective shares of the various heirs of the aforesaid, two ex-Rulers in their personal or private property."
M.L.R. 123.
"3. (1) All disputes relating to the ownership of, or any right or interest in, any immovable property in the former states of Dir and Swat to which any of the following persons are parties; shall be decided by the Provincial Government or an officer authorized by it in this behalf, namely:--
(a) the tenants and ex-Rulers of the said former States or their respective heirs; or
(b) claimant landlords and the ex-Rulers of the said former States or their respective heirs; or
(c) the landlords and tenants."
3. The Dir-Swat Land Disputes Inquiry Commission (herein after referred to as the Inquiry Commission) took cognizance of the matter on the application of Malik Amirzada etc. claiming the disputed property as their ancestral property which was allegedly taken over by the then ruler without payment of any consideration. The claim was enquired through File No, 153- DCR. The Commission after recording statement of the rival claimants dismissed the claim of Malik Amirzada etc. and also held that no valid document about title was produced by the ex-ruler and thus the disputed land was recommended to be State property. Based upon report of the Inquiry Commission part Dir Volume II the Provincial Government through an order on 15.9.1972 under para 3(a) of the Devolution and Distribution of Property (Dir and Swat) Regulation (M.L.R. 122 of 1972) declared at Serial No, 87 (153 DCR) the subject-matter of dispute as State property vide Notification No, 10/16-SOTA-11/72-1520 dated 15.9.1972. The matter went subsequently to Federal Land Commission where the claimant/land owners Malik Amirzada and others filed Revision Petition No, RP. 1 (303)FLC/74 and the successor of ex-ruler Muhammad Shah Khisro Khan also filed Revision Petition No, RP. 1(411)/FLC/172 but both these revisions were dismissed on 10.12.1974. Muhammad Shah Khisro Khan feeling aggrieved from the orders passed in the hierarchy of Inquiry Commission and having no other remedy preferred- Writ Petition No, 117 of 1976. Pertinent to mention here that no writ petition or any other remedy was availed by the original claimants Malik Amirzada etc. but during pendency of the writ petition the Government of Pakistan promulgated Dir and Swat (Devolution and Distribution of Property and Settlement of Disputes of Immovable Property)
(Amendment) Order 1980 where under Section 5(c) the authorised officer of the Federal Government were granted the powers of Review of orders passed by Federal Land Commission.
Consequently the writ petition was withdrawn and a review petition was filed before the authorised officer of the Federal Government but the same was dismissed for want of jurisdiction as the recommendation of the Inquiry Commission was already executed. (No review was filed by original claimants). Once again Muhammad Shah Khisro Khan filed Writ Petition No, 394 of 1981 which was heard by a D.B. of this Court and vide elaborate judgment dated 22.2.1988 the order passed by Federal Land Commission was set aside and the .matter was remanded back for affording an opportunity of adducing evidence to the parties to the writ petition. Pertinent to mention here that the original claimants to the Inquiry Commission were not party to the writ petition. After remand the Federal Land Commission vide its judgment dated 27.12.1989, set aside all the orders passed in the hierarchy of the Inquiry Commission holding the disputed land as State property and declared the suit property as personal property of Muhammad Shah Kishro Khan, Respondent No,
1. The Government of NWFP was not satisfied with the judgment and questioned the same through Writ Petition No, 87 of 1991 which was ultimately accepted through judgment dated 8.11.2001 and the , matter was once again remanded back to the Federal Land Commission for decision afresh after compliance of directions contained in the previous order of this Court dated 27.12.1989. After 10.12.1974 no proceeding whatsoever were carried on by the original claimants before the Commission and no petitioners in Writ Petition No, 1074/2002 and final order of the Chairman Federal Land Commission dated 10.12.1974 has attained finality qua them. This time the Federal Land Commission constituted an Inquiry Commission for recording evidence of the parties as directed by this Court in the order ibid. The inquiry commission held its enquiry at Timargara District Dir where the disputed property is situated and not only the parties to the writ petition (as directed) but the previous claimants/land owners Malik Amirzada and others were also served with a notice to produce evidence if any. The previous claimants once again appeared on the screen after more than 16 years silence. The Inquiry Commission recommended in favour of Muhammad Shah Khisro Khan Respondent No, 1 and the Member Federal Land Commission accepted the report of the Inquiry Commission vide judgment dated 6.5.2002 which has been impugned in both the writ petitions in hand.
4. So far as Writ Petition No, 1074/2002 is concerned suffice it to say that the then claimant Malik Amirzada etc. after failing to get relief from the Inquiry Commission did not further agitate the matter before any forum and thus by their conduct they were estopped to challenge the impugned judgment passed by the Member Federal Land Commission. In the remand order of this Court it was specifically mentioned that opportunity of adducing evidence to the contestants in the writ petition be afforded and not to any other claimant. The successors of claimants/land owners in case No, 153-DCR were summoned by the Inquiry Commission only for the purpose of obtaining evidence for determination of the question under consideration of the commission and by so summoning they cannot be allowed to revive the already closed and conclusive matter since 10.12.1974. The claimants/land owners in 153-DCR could not establish their claim uptil the final forum of Federal Land Commission and they while accepting the same did not agitate any more their title upon the disputed land. In these circumstances, we found Writ Petition No, 1074 of 2002 not maintainable because the petitioners therein cannot be termed as aggrieved persons for the purpose of Article 199 of the Constitution being estopped by their conduct.
5. We heard the learned private counsel for the Provincial Government who contended that the concurrent findings of the Commission were upset through the impugned judgment without any cogent reasons. Respondent No, 1 has filed to substantiate his title over the suit land through any sale-deed and the evidence of the Provincial Government was discarded for no reason.
6. On the other hand learned counsel for Respondent No, 1 while refuting the contention of the counsel for petitioner contended that disputed questions of fact cannot be resolved through a constitutional petition and the only question for determination by this Court is as to whether the Federal Land Commission vide its impugned judgment has or has not complied with the order/directions of this Court. After remand the Federal Land Commission enquired about the controversy between the parties and the Inquiry Officers recorded evidence of the litigating parties and also the previous claimants/land owners and the report submitted by the Inquiry Officer is based on the evidence recorded during the enquiry.
7. This case has got a very chequered history. In the defunct State of Dir no proper record was maintained by the State functionaries or the ex-ruler of the State. In these circumstances when the State was merged as a District of Pakistan a necessity was felt to determine that which property was State property and which property was the personal property of ex-ruler of State. For this purpose MLR-122 of 1972 was promulgated. Simultaneously there was also hue and cry of the people of the area that they were deprived of their properties by the ex-ruler and at the same time there were chronic landlord-tenant disputes. The State armed forces were also given lands as remuneration for their services and it was not cleared that which land was given to the persons of armed forces as the State property and which of the property belong to the person of ex-ruler was under the tenancy of various government functionaries or other inhabitants of the area. To meet all these issues the government promulgated MLR-123 of 1972 whereunder a commission was constituted to hold an enquiry in the cases between the ex-ruler and the tenant, landlord and tenant and claimants owners and the ex-ruler.
8. Malik Amirzada, Khan Malik, Gul Roz Khan, Zrawar Khan Malik and Gulmula Khan Malik predecessors of petitioners in W.P. No, 1074/2002 approached the Commission with an application against the ex-Nawab of Dir claiming title of an orchard measuring 80 Satta (local scale of land measurement) situated in Timargara forcibly snatched and possessed by the ex-ruler. The disputed property was described through boundaries as follows:-- Towards north market and Bazar Timargara, towards south adjacent property of Abdullah Khan, Malik, towards east adjacent public road and towards west adjacent property of Azim Khan etc. Petitioners in the connected Writ Petition No, 1074/2002 are the successors of Gul Roz Khan, Zrawar Khan Malik, Gulmula Khan Malik and Khan Malik while the successors of Malik Amirzada have not joined hands with the petitioners. The Commission recorded joint statement of the claimants on 23.1.1968 stating therein that about 33 years back the ex-Nawab of Dir namely Shah Jehan Khan had purchased 40 Satta of Orchard on payment of consideration but subsequently he forcibly took over possession of their remaining 40 Satta of the land, amalgamated with his purchased property and promised to pay its price to them but he backed out of the promise and no price was paid to them. Thus they claimed possession of the 40 Satta of the disputed land alongwith profit. In rebuttal the representative of Respondent No, 1 denied the claim of aforesaid claimant-owners and pleaded to have purchased the same on payment of consideration from the personal pocket of ex-Ruler but he expressed his inability to produce any documentary record in this behalf. The disputed land was alleged to be in the possession of ex-Ruler as his personal property. After recording this much evidence the APA recommended that the claim of Malik Amirzada etc. is old and may if approved be rejected as time barred. Based on the said recommendation it was ordered that the matter is 30 years old and the plaintiff could not produce any proof, declared the disputed property as State property and rejected the claim of Malik Amirzada etc. claimants vide order dated 4.1.1969. The Provincial Government published in the official gazette order dated 15.9.1972 through Notification No, 10/16-SOTA-11/72-1520 holding the properties mentioned in column II of the appended schedule as State properties. The disputed property is mentioned at Serial No, 87 showing it to be 40 Satta of land at Timargara subject matter of Case No, 153-DCR. The report of the Commission regarding Dir part was published through Volume-II wherein the recommendation of the Inquiry Commission as noted above was published in the 5th column of the appended schedule. The then Deputy Commissioner Dir declared the disputed property as State property on the basis of recommendation of the Commission vide order dated 21.10.1972. Two revisions were filed before the Federal Land Commission, one by Malik Amirzada etc. and the other by ex-Nawab Muhammad Shah Khisro Khan and both the revision petitions were dismissed through judgment dated 10.12.1974.
9. While deciding writ petition filed by the ex-Nawab of Dir it was held as follows:-- "Since we are of the view that an obvious injustice had been done and the case had not been decided on the basis of any evidence, we are constrained to declare the orders impugned in this writ petition as without lawful authority and of no legal effect. The case shall go back to the Chairman FLC (Respondent. No,1) for deciding the case afresh after providing full opportunity to the petitioner and the State to establish their claim of leading such evidence as they may wish to produce. The necessary enquiry into the disputed question shall be conducted by Respondent No, 1 or it may be entrusted to some suitable subordinate officer for the purpose."
10.When the matter went back to the Chairman Federal Land Commission, he formulated the contention of rival claimants and after going through the record he accepted the revision petition of ex-Nawab Muhammad Shah Khisro Khan and all the orders in the lower forums were set aside declaring the disputed property as owned by the petitioner and the then Deputy Commissioner Dir was directed to hand over possession of the land in dispute to Nawab Muhammad Shah Kishro Khan. The order passed by Chairman FLC dated 27.12.1989 was questioned by the Provisional Government in Writ Petition No, 87 of 1991 which was disposed of in the following words: "Consequently the writ petition is accepted, the impugned order dated 27.12.1989 is set aside and the Federal Land Commission is once again directed to decide the case afresh strictly in accordance with the directions given by this Court in Writ Petition No, 394/81 decided on 22.2.1988.
The matter being very old the decision shall be given within six months.'
11.Member Federal Land Commission vide order dated 26.1.2002, appointed the Registrar FLC and Assistant Legal Adviser FLC as Enquiry Officers who visited Timargara, District Dir on Ist and 2nd March, 2002 and held an enquiry in accordance with the direction of this Court through judgment dated 8.11.2001. The parties litigating and the previous claimants Malik Amirzada etc. were issued notices to appear before the Enquiry Officers in the office of District Officer Revenue Timargara and to produce evidence in support of their claims, obviously for resolution of controversy between Provincial Government and the ex-Ruler only who were parties to the writ petition. The Provincial Government produced Tehsildar at Timargara and Executive District Officer Agricultural Department Dir at Timargara while the other contestant party Muhammad Shah Khisro Khan produced Fazli Malik, Advocate counsel for the legal heirs of Muhammad Shah Khisro Khan, Bahadur Khan Attorney of the said legal heirs and Toti Rehman, Moharrir record clerk of Nawab family while the ex-claimants produced Syed Kifayat Yar as their counsel and Muhammad Ajbar Khan, Yousaf Khan, Behramand Khan and Dilawar Khan were produced as their witnesses. The Tehsildar Timargara produced application of the claimant land owners dated 3.8.1967 and their joint statement dated 23.1.1968 with a note of the APA dated 24.1.1968 discussed in the preceding paras. He also produced report of the Commission dated 19.11.1970 in the case of Malik Amirzada and others vs. Late Nawab Shah Jehan Khan. He also produced a letter dated 9.9.1961 issued by the then Nawab of Dir directing Tehsildar to hand over the disputed land to Agricultural Department for development of nursery. Also produced a Letter No, 15428-29/Rev./Lease dated 18.12.1976 from Deputy Commissioner to E.A.D.A. stating therein that 20 Satta of orchard land at Timargara directing him to provide copy of lease agreement between the ex-Nawab and the Agricultural Department for the establishment of nurseries as the land has been decided in favour of State by the Federal Land Commission. Also directed to pay the future lease money to Tehsildar Timargara for onward depositing in the Government treasury. He also produced the auction record of fruit and lease of the orchard from 1977 to 1984 in order to show that the disputed land was merged by the State in the given period. Vide letter dated 31.1.1979 the Agricultural Department relinquished the lease and vacated the disputed property.
12.The evidence relied upon by the successors of ex-ruler are in the shape of sale-deed dated 5.12.1989 whereby Nawab Muhammad Shah Khisro Khan sold away the adjacent property in the shape of rest house to the District Council Dir. The agreement dated 8.4.1985 whereby the exNawab sold the adjacent property to Dr. Inayatul Haq. Letter dated 9.9.1961 by the ex-Nawab directing Tehsildar Timargara to hand over the disputed land to the Agricultural Department for the construction of Fruit Nursery. From 21 to 23.9.1961 the disputed garden was handed over to Agricultural Department. A letter dated 14.4.1962 written by ex-Nawab of Dir addressed to Tehsildar Timargara to show that the disputed land was clarified to be private property of Nawab and its produce shall go to the ex-Nawab. The Tehsildar was directed to help the Agricultural Department in the development of garden. The Field Assistant Agricultural Department addressed a letter dated 19.2.1968 to the personal Kardar of ex-Nawab Dir highlighting the plantation of trees etc. Record pertaining to auction process of the fruit and maintenance of the garden from 1968 to 1976 from the office of Agricultural Department was also produced. The ex-ruler produced the cash book of the ex-Nawab from 1963 to 1976 indicating that the income of the garden was received by the ex-Nawab from the Agricultural Department in the given period. For the construction of General Bus Stand and shops on the disputed property during the pendency of the interim stay order by this Court an agreement dated 21.8.198.4 was executed and signed by the attorney of Ex-Nawab and the Deputy Commissioner on behalf of the Government of NWFP. Apart from this documentary evidence, nine persons were produced in the witness box to substantiate the claim of ex-Nawab over the disputed land as private property.
13.Excluding the successors of Malik Amirzada one of the claimants one male issue of other claimant owners recorded their joint statement with no support of any document or any other oral evidence.
14.The two Enquiry Officers after holding a thorough discussion on the evidence led by the litigating parties i,e, the Provincial Government and ex-Nawab respondent reported that the disputed property is the personal property of ex-Nawab and by giving such report it was also mentioned that the heirs of original claimants Malik Amirzada have deposed in favour of exNawab of Dir by abandoning their claim. The findings of the Enquiry Officers were given effect through the impugned judgment.
15. Undisputedly the subject matter of dispute was claimed by Malik Amirzada etc. before the Commission and they could not substantiate their claim through any evidence either oral or documentary and under the normal course of adjudication of disputes if a claimant fails to establish his claim the claim shall be dismissed in favour of the opposite party. In view of the application of Malik Amirzada etc. claimants against the ex-Nawab of Dir it can be safely held that the matter was falling within the purview of MLR-123 and it was not the subject matter of enquiry under MLR-122. The Commission declared the disputed property in favour of the State merely because neither of the parties to the proceedings in 153-DCR could establish their title and thus the disputed land was declared state property which is obviously against the norms of administration of justice and it was beyond the jurisdiction of Commission constituted under MLR-123 of 1972.
16.While remanding the matter to the Chairman Federal Land Commission by this Court through order dated 22.2.1988 it was specifically directed that after afford g opportunity of adducing evidence to the petitioner (Muhammad Shah Khisro Khan) and the State (petitioner herein) to establish their respective claim of title upon the disputed land. There was no mention that the original claimants Malik Amirzada etc. who had abandoned their claim by not pursuing the right upon the disputed land after the decision by the FLC dated 10.12.1974. Pertinent to mention here that even those claimants did not approach the review Tribunal constituted for reviewing the orders passed by FLC and likewise no constitutional petition was filed by them if there was no other remedy available to them for the redressal of their grievance meaning thereby that they had been left with no grievance and abandoned their claim on the disputed land. Undisputedly the original claimants land owners had passed away when the matter was enquired into by the two officers of the Federal Land Commission.
17.Gul Sherinzada and Hazirzada sons of Malik Amirzada the original claimants in 153-DCR stated before the Enquiry Officers that their father had died on 9.11.2001 at the age of more than 100 years and the disputed land was sold to ex-Nawab Shah Jehan Khan at the rate of Rs, 500/- per Satta and from his pocket he planted fruit trees on it. There were suspecting that their excess land apart from the purchased land has also been amalgamated in the purchased land and they filed a claim before the Commission but subsequently they abandoned their claim, if some of their property has in fact been taken over by the ex-Nawab they had abandoned their claim. The ex- Nawab is the original owner of the disputed orchard, which was established from his personal money so that its usufruct could be utilized by the guests. Rehmatullah Jan an aged man of 70/71 years has also deposed that the disputed land was purchased by the ex-Nawab Shah Jehan Khan from its original owners, Maliks of village Timargara and different fruit plants were planted in it. He had worked in the disputed orchard as personal gardener of the ex-Nawab. The ex-Nawab Shah Jehan Khan had granted this land to his son Muhammad Shah Khisro Khan while his other sons were granted land in Haya Serai and Jandool as their share in the inheritance. Aaqil Muhammad, Noshad Malik, Fazli Manan Khan, Motabar Khan and Said Ismail Bacha all aged persons of more than 65/70 years have deposed before the Enquiry officers that the disputed land is the personal property of Muhammad Shah Khisro Khan and on his death it has devolved upon his legal heirs.
18. In the wake of the aforesaid discussion we are of the firm opinion that the Member Federal Land Commission has rightly followed the directions/observations of this Court while delivering the impugned judgment. The disputed question of fact is beyond the scope of Article 199 of the Constitution of Pakistan and we cannot upset and substitute the finding recorded by the competent forum regarding disputed question of fact.
19. Resultantly both the writ petitions are found liable to dismissal, thus dismissed with no order as to costs. The local administration is directed to give effect to the impugned order dated 6.5.2002 passed by Member, Federal Land Commission in R.P.3 (760)/FLC/2001 without any delay.