MUHAMMAD NASIR MAHFOOZ, J:- Through the present petition, the petitioners have made the following prayer:- "It is, therefore, requested that on acceptance of this writ petition, this Hon'ble Court may be pleased to declare the orders of the respondents dated 16.09.2013, 27.02.2014 and 02.04.2015 as illegal and against law."
2. The essential but the brief facts of the case are that petitioners are inhabitants/residents of Raghain and Reshan Gol Bala and also representatives of other local inhabitants/residents being large in numbers and, therefore, this writ petition has been filed in representative capacity. It is alleged that Assistant Commissioner/Sub Divisional Magistrate Mastoj at Bunni Chitral (respondent No.6) formed an illegal committee of people for the settlement of the issue and the case was sent to respondent No.1 for decision on findings of the committee and so later on Tehsildar Mastoj at Bunni Chitral (respondent No.5) passed an order on 16.09.2013 on the finding of so called committee in which representatives of the petitioners were not included and they were prohibited from grazing the goats/cattle etc, cutting trees and on hunting. The matter was agitated before the Assistant Commissioner Mastoj, who also dismissed the appeal of petitioners on 27.02.2014 whereafter the petitioners approached the Deputy Commissioner, Chitral but could not succeed, thus, dismissed the appeal of the petitioners on 02.04.2015. It is also mentioned that the petitioners then filed a civil suit before the learned Civil Judge, Chitral, which was also returned on the question of jurisdiction, hence, the instant writ petition.
3. Comments were filed by respondents No.5 to 7 alongwith certain annexures i.e. Gazette Notification dated 31.07.1975 wherein reference to para 14 was emphasized.
We have heard the learned counsel for the petitioners and learned A.A.G on behalf of the official respondents besides learned counsel for the private respondents and perused the record.
4. At the very outset, the learned A.A.G raised a preliminary objection over the maintainability of the instant writ petition and referred to Section 3 Sub-section (2) of Distribution of Property Regulation III of 1974 i.e. Settlement of Disputes of Immovable Property (Chitral), Regulation, 1974 which is reproduced as under:
(2) "dispute" means a dispute relating to the ownership of, or any right or interest in any immovable property in the former State of Chitral to which any of the following are parties and which did not exist earlier than the first day of January , 1930, namely:-
(i) the tenants and the ex-Mehtar of the former State of Chitral; or
(ii) claimant landlords and the ex-Mehtar of the former State of Chitral; or
(iii) Landlords and tenants;"
He also referred to Article 3 Sub-clause (2), Article 5 and Article 10 of President's Order No.12 of 1980 known as Settlement of Disputes of Immovable Property (Chitral) Order 1980 which are reproduced as under; "(2) "dispute" means dispute relating to the ownership of, or any right or interest in, any immovable property in the former State of Chitral to which any of the following are parties and which did not exist earlier than the first day of January 1930, namely:-
(i) the tenants and the ex-Mehtar of the former State of Chitral; or
(ii) claimant landlords and the ex-Mehtar of the former State of Chitral; or
(iii) Landlords and tenants;
(4) Determination of certain disputes.-- (1) All disputes referred to in subparagraph (a) of paragraph (2) of Article 3 shall be decided by the Provincial Government or an officer authorized by it in this behalf.
(5) Determination of other disputes.-- (1) For determination of disputes other than those mentioned in clause (1) of Article 4, the Provincial Government may appoint as many of ficers as it deems fit.
(2) An officer appointed under clause (1) shall decide disputes after hearing the parties and taking such evidence as the parties may like to produce.
(3) Any person aggrieved by a decision under clause (2) may, within sixty days of the decision, excluding the period spent in obtaining a copy of the order , submit an appeal to the Provincial Government.
(4) The order of the Provincial Government and, subject to the decision of the Provincial Government in appeal, the order of the of ficer appointed under clause (1), shall be final.
(10) Bar of Jurisdiction.-- Save as provided in this Order , no court or other authority shall call in question, or permit to be called in question, any action or decision taken or order passed under this Order ."
Before dilating upon the subject matter of this writ petition, it would be appropriate to consider the objection to maintainability of the writ petition.
5. From the bare reading of Clause (2) of Section 2 we observe that those disputes would be decided under the said Regulation and President's Order that are mentioned in Sub-clauses (i), (ii) and (iii). Sub-clause (i) relates to the dispute between the tenants and ex-Mehtar of the former State of Chitral and Sub-clause (ii) mentions claimant landlords and ex-Mehtar of the former State of Chitral and Sub-clause (iii) deals with the landlords and tenants.
6. Article 4 provides for determination of certain disputes referred to in paragraph (a) of Clause (2) of section 3 that shall be decided by the Provincial Government or by officials appointed by it in this behalf and similarly Sub- section (1) of Section (4) is referred to in Section 5 of the said Regulation. In terms of the definition of word "dispute" in the said Regulation Section (10) provides for bar of jurisdiction wherein any action or decision taken or order passed under the said Regulation could not be called in question or permit to be called in question before any court. (emphasis provided).
7. Similarly , Article 3 Clause (2) of President's Order No.12 of 1980 reproduced above, defines the word "dispute" exactly in the same words as referred to in Regulation III of 1974, which means that under Article 5 of this Regulation only those disputes would be decided by the Provincial Government or an officer appointed by the Provincial Government that are mentioned in Clause (1) of Article 4. The latter Article refers to dispute in sub - paragraph (a) of paragraph 2 of Article 3 and hence the bar of jurisdiction provided in Article 10 thereof is regarding the dispute which falls within the parameter of Article 3 paragraph 2 that could fall within the ambit of the commission as defined in Article 3 (1) of Order No.12 of 1980. Reference can also be made to a judgment of august Supreme Court of Pakistan in (1993 SCMR 2307 ). Relevant part is reproduced as under; "The High Court inevitably had to go into the Question of facts because unless such a finding was rendered the High Court could not step in. Normally , in exercise of writ-jurisdiction the High Court does not adjudicate upon disputed questions of facts, but, in order to find out whether a tribunal of inferior jurisdiction remained within the sphere of its jurisdiction, determination of jurisdictional facts may become incumbent upon the High Court; thus in a way determination of jurisdictional facts is an exception to the unreviewability of fact. Even, otherwise, we may observe that it is a matter of discretion and not a question of jurisdiction that the High Court may determine question of fact. If a finding of fact given by a tribunal of exclusive jurisdiction is so glaringly contrary to the material placed before it, that the error floats at the surface of the record there is nothing to prevent the High Court to render a finding afresh on the basis of the material available on the file."
8. In the present case, the petitioners have assailed their right to grazing of cattle being the local inhabitants of the area vis-a-vis Article 18 of the Constitution of Freedom of Trade and Profession as they belong to Gujar tribe. The petitioners are running from pillar to post for redressal of their grievance and finally they filed the instant petition for the same purpose. They initiated their grievance before Tehsildar Mastoj at Bunni Chitral, (respondent No.5) for permission to graze their cattle in pasture known as Reshan Gol. On 16.09.2013, Tehsildar Mastoj passed an order on the recommendation of a committee comprising of local elders that grazing of cattle was banned except for the local inhabitants of the area so as to avoid destruction of greenery that results in landslides from the floods. The present petitioners belong to the tribe of Reshan Gol Bala and Raghain. The two tribes Reshan Gol Bala and Reshan Gol Payeen as their names suggest are two tribes but may be distinguished due to their typographical location i.e. Bala and Payeen, so some of the inhabitants of Reshan Gol tribe were aggrieved of the order of the Tehsildar Mastoj and filed appeal before the Assistant Commissioner/SDM Mastoj at Bunni. Vide order dated 27.02.2014, the Assistant Commissioner i.e. respondent No.6 dismissed the appeal and held that the order of Tehsildar Mastoj is based on correct appreciation of the matter on the subject between the parties, so keeping and grazing of large number of cattle was not allowed. It was concluded, that since all the pastures are state owned, therefore, in view of the said order non-inhabitant Gujjars were restrained from grazing their cattle, however, inhabitants of Reshan Gol were allowed to graze their cattle turn by turn. The appeal was dismissed. Feeling aggrieved against this order, the matter went up to Deputy Commissioner/Collector, Chitral, presently respondent No.7 herein who has given his findings in para No.3 of his order passed on 02.04.2015. In the said order, he has verified the NICs of certain persons and held that in the name of local inhabitants some people are taking benefits and creating problems for the others, however, with the said modification the appeal was disposed of with direction to implement the same.
9. In order to appreciate the controversy between the parties, it would be sufficient to state that the subject matter relates to grazing of cattle on pasture of Reshan Gol and nowhere relates to the subject matters that are part of the aforementioned laws because neither the petitioners are tenant or landlords nor the private respondents are tenants or landlords or for that matter belong to the family of ex-Mehtar of Chitral and so does not fall for determination within the ambit of the commission. The objection over the maintainability of this writ petition raised by the learned A.A.G is, therefore, rejected and it is held that even if an alternate remedy available is not an adequate and efficacious remedy still jurisdiction of this court could not be ousted if the authority has failed to exercise jurisdiction in a lawful manner as held by the Apex Court in judgments reported in Al-Jehad Trust v.
Federation of Pakistan (PLD 2006 SC 697 ) the relevant para is reproduced as under; "But at the same time, we have also to keep in mind another very important principle of law enunciated by this court in the case of Syed Ali Abbas v. Vishan Singh (PLD 1967 SC 294) i.e. petitioner cannot be refused relief and panalized for not throwing himself again (by way of revision or reveiew) on mercy of authorities who are responsible for such excesses. This principle has to be read along with the principle laid down in the case of Anjuman-e Ahmadiya, Sargodha ibid wherein it has been held that if any adequate remedy privided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be invoked. Similarly this principle has been reiterated in the Murree Brewery's case ibid wherein it has been held that if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party.
Thus we are of the opinion that unde r the circumstances of the case, it would not be in the interest of justice to push the petitioners back to the authority who had already exercised the jurisdiction and is insisting that the action so taken by it is not only in accordance with law as it suffers from no legal discrepancy or infirmity but is also transparent. Therefore under the circum stances, referring the case of the petitioner to the Federal Governm ent of this Court directing investiga tion under section 27 of the Ordinance would be inappropriate and an exercise in futility and it would also not serve the interests of justice."
It was further reiterated in (2017 SCMR 732 ).
10. Now so far as the rights of the parties are concerned, reference to Gazette Notification dated 31.07.1975, which is placed on file with the comments filed by respondents No.5 to 7 is essential. Para 14 of the said notification passed by the Home and Tribal Affairs Department is reproduced as under:- "14. All forests except trees standing on cultivated lands, charagahs, shikargahs, waste lands and mines and minerals subject to such concessions to the public which the Government may determine and especially subject to the following concessions to the public.
(a) Obtain firewood from the forests (dry only).
(b) Obtain timber for private use under a permit.
(c) Grazing of cattle to be regulated by Government."
Now we come to the impugned order. Through the impugned order, respondent No.5 has no doubt regulated the grazing of cattle but has not specifically dealt with the right of present petitioners who do belong to the same tribe as apparent from the contents of the writ petition with the exception that petitioners are resident of Reshan Gol Bala and Raghain while respondents are residents of Reshan Gol Payeen. The authority of officials of the Provincial Government to regularize the grazing rights or assume jurisdiction in any matter would never be disputed but that authority is undoubtedly subject to Article 10 (A) of the Constitution of Islamic Republic of Pakistan, law, rules and regulations. Right to fair trial besides right to be treated in accordance with law are part of the fundamental rights as provided in the Constitution of Islamic Republic of Pakistan which has been denied to the present petitioners. The present petitioners have assailed the administrative orders of official respondents which are always subject to scrutiny by the regular courts as well as by this court in its constitutional jurisdiction as they could not be left without any remedy in view of the well known legal maxim, ubi jus ibi remedium (where there is a right there is a remedy). Constitutional petitions are entertained in aid of justice for curing or correcting the wrong and not to perpetuate injustice. however, if it is found that substantial justice has been done between the parties then this discretion may not be exercised. The petitioners have been non-suited by the civil courts as well as by the respondents without dilating upon the proper nature of their grievance, that they do belong to the tribe of local inhabitants or not.
11. Copies of the orders of learned Civil Judge/Illaqa Qazi, Chitral dated 30.04.2014 regarding return of plaint and the order dated 07.07.2014 of learned ADJ-II, Chitral whereby revision revision against said order was dismissed as incompetent, are placed on file. it appears that petitioners have tried to avail every legal remedy for redressal of their grievance and the respondents have equally tried to create hurdles in their this pursuit.
Objection to maintainability of this constitutional petition seems to be a step in the same direction.
12. Resultantly, the petitioners, inhabitants of Reshan Gol and Raghain are local inhabitants so have a right to graze their cattle subject to be regulated by official respondents and outsiders have got no such right.
For the reasons stated hereinabove, this writ petition is allowed to the extent that official respondents shall regulate the rights of grazing of cattle of the local inhabitants and allow not more than 3 cattle per head per family , for the purpose of grazing in the State owned pastures. No order as to cost.