' NISAR HUSSAIN KHAN, J.---Through this common judgment, we, intend to decide 32 Writ Petitions, tabulated as follow, having common question of law, and to some extent facts, as well:--
1. W.P. No, 356-M/2012, titled Shehzada Aman-e-Rome and others v. Federation of Pakistan and others;
2. W.P. No, 385-M/2012, titled Shahzada Sultan Rome through L. Rs, v. Miangul Hilal and others;
3. W.P. No, 414-M/2012, titled Fazal Rahman v. Federal Land Commission and o'thers;
4. W. P. No,168-M/2011, titled Shahzada Sultan Mehmood and others v. DOR/DLC, Swat and others;
5. W. P. No, 204-M/2011, titled Mst. Zarnigar Aman-e-Rome and others v. Federal Land Commission and others;
6. W.P. No, 226-M/2011 titled Kamin Mian v. Chairman FLC and others;
7. W.P. No,107-M/2012 titled Muhammad Kamal and others v. Chairman FLC and others;
8. W.P. No,108-M/2012, titled Shahzad v. Federal Land Commission and others;
9. W.P. No,134-M/2012, titled Muhammad Khurshid and another v. Muhammad Zubair and others;
10. W.P. No, 139/2012 titled Muhammad Afzal Khan v. Federal Land Commission and others;
11. W.P. No,161-M/2012, titled 1.:akht Sher All Khan and others v. Federal Land Commission and others;
12. W.P. No,186-M/2012, titled Ismail v. DOR/DLC and others;
13. W.P. No,196-M/2012, titled Syed All Haider and others v. Chairman FLC and others;
14. W.P. No,199-M/2012, titled Muhammad Zahir v. Federal Land Commission and others;
15. W.P. No,204-M/2012, titled Mst. Kharo and others v. Chairman Federal Land Commission and others
16. W.P. No,242-M/2012, titled Muhammad Rome and others v. Chairman FLC and others;
17. W.P. No, 287-M/2012 titled Bunera y Mian. And another y. Federal Land Commission and others-
18. W.P. No,308-M/2012, titled Ayoub Khan v. D. O. R/Deputy' Land Commissioner and others;
19. W.P. No,324.-M/2012, titled Hussain Ali and others v. Federal Land Commission and others;
20. W.P. No, 407-M/2012, titled Abubakar v. Abdur Rahim and others; W.P. No,417-M/2012, titled Attaullah Khan arid others v. Federal Land Commission and others; 21 W. P. No,.439-M/2012, titled Muhammad Ayaz V. Chairman 11C andothers;
23. W.P. No,463-M/2012, titled. Asghar Khan and others v. Chairman FLC and others;
24. W.P. No,464-M/2012, titled Kamin Mian v. Chairman FLC and others.
25. W.P. No,465-M/2912 titled Said Ali Haider v. Chairman FLC and others;
26. W.P. No,570-M/2012 titled Fida Muhammad v. Chairman FLC and others;
27. W. P. No, 619-M/2012, titled Anti,' Mumtaz and others v. Chairman - FLC and others;
28. W.P. No,08-M/2013, titled Akhtar Munir v. Federal Land Commission and others;
29. W.P. No,09-M/2013 titled Bashir Ahmad and others v. Chairman FLC and others;
30. W.P. No, 21-M/2013, titled Akbar Ali and others v. Federal Land Commission and others;
31. W.P. No,24-M/2012, titled Mian Igbal Hussain v. Federal Land Commission and others;
32. W.P. No,630-M/2012, titled Mian Kausar Hussain and others v. Chairman FLC and others;
2. Questioned herein all these petitions are the orders or Federal Land Commission in R.P.
No,3(490)FLC/2011, RP No,3(494)/FLC/2011, R.P. No,3(498)/ FLC/2011, dated 30.9.2011, R.P.
No,3(500)/FLC/2011 R.P. No,3(501)/FLC/ 2011, dated 27.10.2011, R.P. N0.3(504), 505, 506, 507, 508)/FLC/2011 dated 20.12.2011, R.P. No,3(509, 510)/FLC/ 2011, dated 20.12.2011, R.P. No,3(522, 523)/FLC/2011 dated 24.62.2012, R.P. No,3(512)/FLC/2011 dated 19.01.2012, R.P. No,3(1161)/FLC/2012 dated 01.6.2012, R.P. No,1 (94)/FLC-74-76 dated 01.10.2012, R.P. No,3(511, 512)/ FLC/2011 dated 19.01.2012, R.P. No,3(510)/FLC/2011 dated 21.12.2012, R.P. No,3(512)/FLC/2011 dated 19.01.2012, R.P. No,3(526, 534)/FLC/ 2012 dated 02.3.2012, No,1182/FLC/2011 dated 29.3.2012 and DY. No,1182/FLC/2011 dated 02.7.2012.
3. Learned counsel for the petitioners in Writ Petition No,356 of 2012, advanced extensive arguments on law points apart from recapitulating the facts of the case which were adopted by all the counsel in their respective petitions. He elaborately highlighted the facts of the case which are already provided in his petition. Learned counsel for the petitioner contended that although Martial Law Regulation No,115 of 1972 was extended to this area which is part of Provincially Administrated Tribal Area, commonly called as PATA, but the Land Reforms Act II of 1977 was not extended thereto, hence the provisions thereof are not applicable to District Swat. He maintained that petitioners who are necessary party to the lis, being the actual effectees, have neither been impleaded nor any notice was issued to them by the Federal Land Commission, thus the impugned order is hit by the principle of audi alteram partm' ; that the Federal Land Commission has no authority to directly entertain such like petitions nor it has any jurisdiction under Act II of 1977; that Section 27 of the ibid Act, is not attracted to these cases, as no case was pending before any authority of the Land Commission; that impugned order is also passed in derogation of judgments of Shariat Appellate Bench of Supreme Court, passed in Qazalbash Waqf case, PLD 1990 Supreme Court 99. He also addressed arguments on the point of maintainability of writ petition qua the matter in question, as respondents have filed C. Ms. By questioning the maintainability of these petitions. In support of his arguments, he placed reliance on plethora of case law. He maintained that on 03.12.2005, Deputy Land Commissioner issued notice for submission of choice, where-upon the petitioner filed a representation for seeking clarification of their properties which were free from disputes; that being unsuccessful, they moved the Land Commissioner, Malakand which was allowed and attained finality as it was not questioned before any competent, forum; that their applications for choice were dismissed by the Deputy Land Commissioner and appeal there-against was still pending when the impugned order was passed by the Federal Land Commission in clandestine manner which is arbitrary, perverse, fanciful and against the norms of natural justice; as such, is liable to be struck down.
4. Conversely, learned counsel for respondents argued that instant writ petitions are not maintainable; firstly for want of jurisdiction and; secondly for non impleading all the necessary parties who were petitioners before the Federal Land Commission in connection with the impugned order. They maintained that matter of resumption and consequential allotment is a past and closed transaction which cannot be reopened in these petitions; that prayers sought in these petitions are beyond the scope of constitutional jurisdiction of this Court; that Ex-Ruler of erstwhile State of Swat was not "Dautari Pakhtoon" of this area, so was not entitled to any ownership; that the lands which were owned by erstwhile Ruler of Swat, were not their ancestral ownership, rather it was either purchased or of donations, so they were required to provide proof thereof; that the matter has already been decided by this Court in Writ Petition No,157 of 1997, titled "Mian Shahzada Jehanzeb through L.Rs, v. Deputy Land Commissioner, Swat", decided on 1st April, 1998, against which appeal filed by the said petitioners has been dismissed. They maintained that Federal Land Commission has competently passed the impugned orders while jurisdiction of High Court is specifically ousted by the barring clause provided in Martial Law Regulation 115 as well as Land Reforms Act. In this regard, they referred the case law. Learned counsel maintained that Martial Law Regulation No,115 was applicable to the area as Article 247(3) of the Constitution of Islamic Republic of Pakistan is not applicable to the Regulations. However, they conceded that Land Reforms Act 1977, has not been extended to PATA. He maintained that law declared in Qazalbash Waqf case, is not attracted to the instant cases, as proceedings therein have already been concluded, before that judgment. Learned counsel contended that private respondents were not party to the previous litigation before the different for a with regard to the suit property, nor they were party before the High Court in Writ Petition No,157, nor before the august Supreme Court.
5. Learned A.A.G., while arguing on behalf of the official respondents, maintained that though Land Reforms Act, 1977 has not been extended in accordance with law to PATA by any express provision or any instrument, but the Ordinance which later on culminated into Act as Act II of 1977, was protected by Article 270-A(3) through 8th Amendment of the Constitution, so it be deemed to be extended to the area. -He maintained that though Martial Law Regulation No,115 was not specifically extended, but it was made applicable to the area so the Act II of 1977 may also be treated alike; that all orders passed by the "Land Enquiry Commission" were to be implemented through Deputy Commissioner Swat, pursuant to Notification of 18th November, 1989; that revenue authorities have no jurisdiction to interfere in the orders of Land Enquiry Commission; that jurisdiction of the Revenue Board was not extended to this area, so the whole proceedings conducted by the revenue hierarchy including the settlement are `coram non judice' . He maintained that Ex-Ruler of Swat died on 1st October 1971 and was survived by two sons and five daughters, while Martial Law Regulation No,115 was promulgated on No,122 was promulgated on 12th April 11.3.1972, whereas target date in 1972, where-under a commission was Qazalbash Waqfi case was provided as 23rd March, 1990, however, the properties of-Ex-Ruler of Swat were resumed much prior to the said judgment. He maintained that this Court, while exercising powers under Article 199 of the Constitution, cannot cancel the allotments. While responding to the objection .Of the learned counsel for the petitioners about two consecutive notifications of appointment of the Chairman Federal Land Commission as the-Federal Minister; he maintained that it was because the august Supreme Court. Disqualified the former Prime Minister from the date of his appointment as Minister and on the disqualification of the Prime Minister, his whole cabinet was dissolved -due to which the second notification was to be issued on taking oath of the second Prime Minister with his cabinet.
6. We have heard respective arguments of learned counsel for the parties, in all the above mentioned petitions and, have gone through available record.
7. Subject matter of all these petitions carries a chequered history of litigation. Ex-Ruler of erstwhile State of Swat, namely Mtan Gul Abdul Wadood, commonly known as "Badshah Sahib" owned and possessed vast property in different revenue estates of present District of Swat. In 1969, the State of Swat was merged in Pakistan and its administrative control was taken over by the provincial Government pursuant to promulgation of West Pakistan, Regulation No,1 of 1969, on 15th August, 1969. After the merger of State of Swat and Dir, multiple disputes with regard to the properties emerged between the locals and the Ex-Rulers of both the States, for resolution of which Martial Law Regulation appointed to determine that:-- i. What are the State properties of former States of Dir, Swat; and ii. What are the personal properties of Ex-Rulers of both the States; and iii. The respective shares of the various heirs of both the Ex-Rulers.
8. It was provided in the said Regulation that all the State property shall vest and deemed to be vested in the Provincial Government from the time of enforcement of this Regulation. While personal properties of Ex-Ruler shall devolve upon and be accordingly distributed amongst their respective heirs. In case of emergence of any dispute with regard to the said property, the matter was to be decided by the Provincial Government. Likewise, Martial Law Regulation No,123 was also promulgated on the same date where-under "Land Disputes Enquiry Commission" was appointed by the Provincial Government by its Notification No,66 S.O.(SPL)/HD/70, dated 8th October 1970, who was authorised to settle the disputes with regard to any immovable property in the former States of Dir and Swat amongst: a. The tenants and Ex-Rulers of said former states or their respective legal heirs; or b. Claimants land lords and the Ex-Rulers of the former states or their respective heirs; or c. The land lord and tenants.
9. The rights of the parties were to be determined in right of recommendations of the said Commission. Right of appeal was also provided to the aggrieved party against any decision or order of the Commission which was to be decided by the Provincial Government. Whereas, the Federal Government was vested with the power of review of any such order under section 5-C of the said Regulation. It appears from the record as well as conceded from both the sides at the bar that Ex-Ruler of Swat passed away on 1st October 1971, after merger of his State in Pakistan and before the promulgation of both these Regulations. When the proceedings under these Regulations for determination of the status of the properties of Ex-State of Swat and resolution of disputes was in progress, contemporaneously, Martial Law Regulation No,115 was also promulgated on 11th March 1972, some one month prior to Martial Law Regulation Nos.122 and 123. In pursuance of Martial Law Regulation No,115, the two sons of "Badshah Sahib", namely Mian Gul Shehzada Abdul Haq Jehanzeb and Mian Gul Shehzada Sultan-e-Rome, were called upon by the Land Reforms authorities to file their declaration and they were also asked to make choice of the land to be retained by them equivalent to 12000 P.I.Us., each. Originally, they were reluctant in filing the declaration being apprehensive about their ownership of the properties, as number of disputes were pending before "Land Dispute Enquiry Commission" and they were not certain that which property is or would be deemed to be their ownership. However, Mian Gul Shehzada Abdul Haq Jehanzeb, after some hesitation, filed his declaration while Mian Gul Shehzada Sultan-e-Rome did not file his declaration and choice, so Deputy Land Commissioner by exercising his powers under Martial Law Regulation No,115, did the job. There were number of cases pending before "Land Dispute Enquiry Commission" and orders made by the Commission were questioned in appeal as well as in review petitions by the declarants or by the claimants at different fora.
10. It is pertinent to mention that West Pakistan Land Revenue Act, 1967, was made applicable to Provincially Administered Tribal Areas, including Swat, by promulgation of "Provincially Administered Tribal Areas (Application of Laws) Regulation, N.W.F.P. Regulation 1 of 1974. In this respect, objection of learned A.A.G. Qua the vires of settlement of the area carried out from 1981 to 1986, is misconceived.
11. It divulged from the record that tenants private respondents herein all these petitions, directly filed petitions before the Federal Land Commission which were entertained and consequently allowed and impugned orders were passed. To better understand the nature of the disputes and resolution thereof, all these cases may be categorized as follows:-- I. In first category, the declarants, petitioners have urged that no allotment pursuant to the provision of Martial Law Regulation No,115 or Land Reforms Act, 1977 can be made without affording a proper opportunity of making choice to the declarants; II. Second category of the cases is of those owners who were granted decrees by the "Land Dispute.
Enquiry Commission", constituted under Martial Law Regulations Nos.122 and 121 They claim that their properties cannot be made subject to land reforms by counting it in the holding of the sons of "Badshah Sahib", as these decree holders are not the declarants in their own right or liability; III. In this category are the cases of those people who purchased the properties from the decree holders, of "Land Dispute Enquiry Commission". Their contention is that they being bona fide purchasers of the properties from the decree holders cannot be made subject to the operation of Martial Law Regulation No,115 by putting their properties in the pool of original declarants, the sons of Ex-Ruler of Swat, because they by virtue of their small holdings, are not the declarants; IV. Fourth category of the cases is of those people who purchased P.I.Us. From some declarants, after they had exercised their right of choice. V. In this class is the sole Writ Petition No,385/2012, the petitioners whereof sought their impleadment by filing application before the Federal Land Commission, but their prayer was turned down and the direct application moved before the Federal Land Commission by the private respondents, was allowed.
12. While taking up the first category of cases which pertains tq the family members/descendants of Ex-Ruler of Swat, "Badshah Sahib", who was survived by, as per record his two sons, namely Mian Gul Shehzada Abdul Hay ieharizen and Mian Gul Shehzada Sultan-e-Rome. Before proceeding further, it is to be clarified that although "Badshah Sahib" had five daughters, but it was stated at the bar by the learned counsel for the petitioners in Writ Petition No,356-M of 2012, who also happens to be the scion of the same family, that the daughters were compensated by family settlement, from other properties of "Badshah Sahib", situated in other parts of the country out of Swat. It seems logical and convincing, as none of them or their descendants have ever come forward to agitate their right. Their long silence about their right speaks volume about their acquiescence in the devolution of the property on two sons of "Badshah Sahib", so we need not to enter into those matters which have not been agitated before us.
13. Admittedly, at the time of promulgation of Martial Law Regulations Nos.115 or 122 and 123, there was no settlement. Of the area, so there was no record. Pursuant to the provision of Martial Law Regulations Nos. 122 and 123, about five hundreds claimant filed their claims before the Enquiry Commission with regard to the different properties of "Badshah Sahib", most of which were decreed in their favour. Both the sons of "Badshah Sahib" made their representation by filing appeals and revisions before the competent fora against those orders of the Commission, out of which about fifty-five cases were decided in their favour. As contemporaneously, proceedings under MLR 115 were also in operation, so most of those properties were allotted to the tenants. They were asked to submit their choice for retention of the lands, but they were unable to offer their choice as most of the properties were under litigation before Land Enquiry each Commission, constituted under Martial Law Regulations Nos.122 and 123, so they expressed their inability to file the choice, as they did not know which property will ultimately fall to their share. In the meanwhile, most of the properties were provisionally resumed by the Land Commission authorities and allotted to the tenants. There were umpteen complaints about the excesses of Land Enquiry Commission, due to which Mr. Justice (Retired) Qaiser Khan was appointed as Chairman Tribunal Dir, Swat and Chitral, before whom the affectees could seek review of the orders of Land Enquiry Commission. Though the declarants were asked to file choice, but they could not offer the choice of even all those fifty- five cases which were decided in their favour by the Review Tribunal as the properties had already been allotted to the tenants. We need not to discuss this matter in detail anymore because the matters have been set at rest by this Court in W.P. No,157 of 1997, titled "Mian Shahzada Jehanzeb, through L.Rs, v. Deputy Land Commissioner, Swat", whereby writ petition filed by the declarants was dismissed against which they filed C.A. No,875 of 1999, which too met the same fate on 05.5.2005.
14. After this verdict of the Supreme Court, District Officer Revenue and Estate/Collector in capacity as Deputy Land Commissioner, issued notice to the declarants, the descendants of Ex-Ruler of Swat vide letter No,698-91/L.R. Dated 29.07.1985, to submit their choice for retention of the property within xwo weeks, failing which the authority would itself make a choice on their behalf. This notice was responded to by the declarants to seek information about their undisputed properties about which they may file the choice, as most of their properties were under litigation before the different Courts/Tribunals, out of which most of the cases have been decreed in favour of the claimants and most of the properties have been allotted to the tenants and they were not aware of their properties about which they may file their choice. There, request, was turned down by the Deputy Land Commissioner, against which appeal was filed. The same was allowed on 21.8.2006, whereby Deputy Land Commissioner was directed , to comply with the legal requirements. This order was not challenged by anyone, so it attained finality. It appears from the record that Mian Gul Adnan Aurangzeb and 23 others filed application before the Deputy Commissioner, Swat offering their choice which was dismissed on 10.4.2010 by holding that the properties regarding which declarants have offered choice, had already been allotted so in view of the judgment of High Court purportedly in No,157 of 1997, cannot be put in their choice. Against this order, the declarants filed appeal before the Land Commissioner which was pending disposal and in the meanwhile private respondents approached Federal Land Commission through an application wherein none of the petitioners was arrayed as party nor they were summoned and admittedly were also not heard.
And consequently, the impugned order dated 30.9.2011 was passed in their absence, whereby the properties of the declarants were allotted to the private respondents and concerned 'Patwaris' of the villages were directed to immediately enter the mutation in favour of private respondents.
Aggrieved by that order of the Federal Land Commission, petitioners/declarants have filed this petition.
15. In cases of second category, pursuant to Martial Law Regulations Nos.122 and 123, the claimants filed their claims before Land Disputes Enquiry Commission which were allowed and after passing through different stages of litigation, their decrees were incorporated in the revenue record. All of a sudden, the private respondents awakened and filed applications before the Federal Land Commission, who without summoning the decree holders and without offering them opportunity of defence, accepted the applications of the tenants and allotted the properties of those petitioners/decree holders with the direction to the concerned Patwaris' to mutate those properties in favour of the tenants. The petitioners/ decree holders being aggrieved of the orders of Federal Land Commission, have filed these petitions.
16. The third category of the cases is of the persons who purchased the properties from peoples who were owners of the properties on the basis of decrees passed in their favour by the Land Dispute Enquiry Commission and their names were incorporated in Revenue Record as owners. The private respondents directly approached the Federal Land Swat Commission for allotment of those properties which were accordingly allotted without hearing those owners. Having no other adequate remedy available, they have filed these petitions.
17. The fourth one is the category of those people who purchased the Produce Index Units of some of the declarants who were entitled to retain those properties up to the ceiling of 12000 P.I.Us. On the basis of those transactions, the properties were entered in their name, but all of a sudden impugned orders were passed by the Federal Land Commission by directly entertaining the applications of private respondents and consequently, allotted those lands in their favour without hearing the petitioners. Owners of properties. Being aggrieved\ of these arbitrary orders, they approached this Court for redressal of their grievance.
18. It is also pointed out that in one of the case, the aggrieved party did approach the Federal Land Commission by filing application for their impleadment so that they may defend their interest but their application was turned down.
19. Learned counsel for the respondents have objected that in view of the bar contained in Para 26 of MLR 115 and Section 28 of Land Reforms Act 1977, this Court cannot entertain these writ petitions.
These ouster clauses are with regard to those orders which are made in accordance with law, by adhering to all norms of justice, equity, good conscious and fair play. For lawful orders, there is no need of saving clause in the Statute. Rather those bona fide orders, passed in accordance with all the norms of justice guard and protect themselves by their inherent bona fide and sacrosanct nature. But when an order is passed in colourful exercise of powers and in violation of all norms of justice, that cannot be immune from the judicial scrutiny, nor a subservient legislation can abridge the constitutional powers of the High Court. Article 199 of the Constitution, postulates to strike down those orders and performance of functions in connection with the affairs of the Federation, Province or a local authority which have been done or taken without lawful authority. Any order passed in colourful exercise of powers or in violation of any statutory command, is an order without jurisdiction. The authority or tribunals are vested with powers to decide the matter rightly and not wrongly. Whenever a Tribunal goes wrong in law, it goes outside its jurisdiction rendering its judgment/order as without lawful authority.
' As the impugned orders of the Federal Land Commission have been passed in derogation of statutory command and in violation of all norms of justice, hence are amenable to constitutional jurisdiction of this court.
29. The objection of the learned counsel for the respondents with regard to the territorial jurisdiction of this Court is also misconceived. The Land Commission is performing functions in connection with affairs of the Federation as well as the Province, pursuant to the Land Reforms Laws throughout the country. The Deputy Land Commissioner, Land Commissioner and Chief Land Commissioner are performing functions under his supervisory jurisdiction being his subordinate authorities in this area, where the property situates within the territorial jurisdiction of this Court. The impugned orders of Federal Land Commission, passed at Islamabad, have affected the parties and properties situated within the jurisdiction of this Court. Thus, this Court has got the territorial jurisdiction as well.
21. It has also been contended on behalf of respondents that these petitions are not maintainable as petitioners have alternate remedy under section 53 of the Land Revenue Act, 1967. This objection of learned counsel is also not tenable. Section 53 of the West Pakistan Land Revenue Act 1967, provides remedy against an entry in Record of Rights. While in all these petitions, orders of Federal Land Commission, have been assailed. Principle of alternate remedy is not a rule of law barring jurisdiction but a rule set by the superior Courts to regulate their jurisdiction. Expression used in Article 195 of the Constitution "A High Court may, if it is satisfied that no other adequate remedy is provided by law" has wide connotation. It envisages in positive- terms that even though there may be alternate remedy but if it is not adequate, the High Court may interfere by exercise of its constitutional jurisdiction to rectify the error by setting the illegal order at naught.
22. Land Reforms Regulation 115 of 1972 as well as Land Reforms Act 1977 have self-contained procedure for seeking declaration from a land owner, resumption of his excess land and allowing him to offer choice for the land permissible to be retained up to 12000 Produce Index Units. After resumption of the land and seeking choice of the declarants, the resumed excess land may be allotted to the tenants! For allotment of land procedure has been provided in Gazette Notification of N.-W.F.P. Extraordinary, No,474-LC, 19th March 1973 for giving effect to the provisions of Martial Law Regulation No,115. In Para 4 of that notification, the criteria of eligibility is provided and in Para 5, the priorities of allotment has been set, whereas Para 7 of the same provides for application for grant of land to be made in Form LR-XIA, to be filed before the Sub-Assistant Land Commissioner (Tehsildar of the Tehsil). On this application process would be initiated and after due verification, the lands could be allotted. Likewise, vide N.-W.F.P. Land Reforms (Procedure for grant of land), Rules 1979 notified vide No,1928/LC/LR77, 16th July 1977, framed pursuant to Section 21 of the Land Reforms Act 1977 (Act II of 1977), a proper procedure has been provided where-under a tenant would make an application for grant of land in Form LR-III to the Deputy Land Commissioner of the District who shall refer the same to Sub-Assistant Land Commissioner of Sub-Division concerned.
' After due process of verification of that application, the land would be granted as per the priorities set in Rule 5 of the said Rules. It appears from all the impugned orders that no such procedure has been adopted by the respondents for grant of land in their favour. Rather all of them, instead of following due process of law, have directly approached the Federal Land Commission, who too without verification of their claims and without hearing the other side who were to be affected by his orders, has passed the impugned orders in a haphazard and clandestine manner which cannot be countenanced nor approved by any Court of law on any ground whatsoever. It is settled law that things are required to be done in the manner provided by law or not at all. In all these cases procedure prescribed by law has not been followed. Rather by violating the rules of Procedure, the Federal Land Commission has allotted the land of petitioners without any verification. Such orders being coram non judice can conveniently be challenged before the High Court in writ petitions, as these are not immune from judicial review.
23. It is common feature of all these cases that Chairman Federal Land Commission has passed the impugned orders in absence of all the interested parties who were going to be affected by his orders. It is basic principle of law that every Tribunal or authority is legally obliged to hear the other side before passing any order by which a party is going to be affected. Principle of audi alteram partem' is universally recognized and is consistently and jealously followed. If any order is passed by the authority in derogation of this principle, it never enjoys respect as of a lawful order. The party going to be affected by the prospective order has every right of being heard before passing of such order. This principle, even if not provided in the statute, is always adhered to consistently by all the Courts and Tribunals. In matter of Land Reform, the legislature has expressly provided this right in proviso (ii) of Para 29 of Martial Law Regulation 115 of 1972, which reads as follows:-- "Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard".
24. Likewise, in Section 27 of Land Reforms Act 1977, the same provision has been inserted. Above all, Article 10-A has been particularly inserted through 18th Amendment Act X of 2010 in the Constitution of Islamic Republic of Pakistan 1973, which runs as follows:-- 10-A, RIGHT TO FAIR TRIAL:-- "For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process".
25. This Article acknowledges the right of every individual of fair trial both in civil as well as criminal proceedings. There can be no concept of fair trial in absence of right of hearing or right of the defence. Surprisingly, the Chairman Federal Land D Commission, by passing the impugned orders, has not only violated the universal principle of audi alteram partem' and salutary provisions of Para 29, proviso (ii) of MLR 115 as well as provision of section 27 of Land Reforms Act, 1977, but has also transgressed the fundamental right of the petitioners enshrined in Article 10-A of the Constitution.
Any order passed by an authority or tribunal in violation of the provision of the statute and particularly in derogation of a guarantee enshrined in an Article of the Constitution, is liable to be struck down being made or passed without lawful authority and of no legal effect. Consequently, the impugned orders of the Federal Land Commission are declared as such.
26. The matter does not end, on mere declaration of the impugned orders as illegal, unlawful and having been passed without lawful authority, because in the instant case, undisputedly the Ex-ruler of Swat, namely "Badshah Sahib" had huge property which remained subject matter of litigation before the "Land Dispute Enquiry Commission", constituted under Martial Law Regulations Nos.122 and 123 as well as before the land reform authorities under Martial Law Regulation No,115 of 1972. As both the proceedings under MLR 122 and 115 were contemporaneously proceeded with, hence overlapped each other and most of the properties, as alleged by the respondents, were mutated in favour of the decree holders in excess of their terms of decrees. The reason for such excesses was that at the time of those decrees, the settlement of the area was not conducted and after the settlement in 1986, the decree holders successfully claimed and mutated more than their due share, under the garb of those decrees. On the other hand, the tenants were allotted lands before seeking choice of the declarants where some of the tenants as in the cases herein, got the properties allotted on the basis of entries of the revenue record of 1985-86. In some of the cases, it was pointed out that they were not recorded as tenants in the revenue record.
27. The shabby episode of these anomalies ensued, the moment MLR 123 was promulgated, just after about one month of MLR 115. The .Former broke open the flood gates of claims against the properties of Ex-Ruler of Swat, and Claimant Swarmed the Land Disputes Enquiry Commission. Most of the lands, which could have been allotted to the tenants, were successfully claimed by these claimants before the Enquiry Commission. There were cries against the excesses of Enquiry Commission, for redressal of which, Review Commission, headed by the Hon'ble Justice (Rtd) Mr. Qaisar Khan, was constituted, who, in most of the cases, reversed the decrees of Land Disputes Enquiry Commission. However, these parallel proceedings, before the Land Disputes Enquiry Commission, frustrated the very spirit of MLR 115. Promulgation of MLR 123 damaged the cause of tenants on one hand, and also deprived the declarants. From offering required choice of their properties, on the other. While the precious properties were taken away, by the middle man as usual, the claimants whether false or true. However, that stage has gone by. All this has been accomplished under the garb of a legal instrument of MLR 123. However, in the meanwhile, the relevant Paras of Martial Law Regulation No,115 and operative sections of Land Reforms, Act 1977 have been declared as repugnant to Injunctions of Islam by. Shariat Appellate Bench of the Supreme Court in case titled, "Qazalbash Waqf v. Chief Land Commission" PLD 990 SC 99. In that report, the august Court has declared that the said provisions of the Regulation and the Act would cease to have effect after 23.3.1990. In view of the dictum of the Supreme Court, the properties which have been allotted prior to 23.3.1990, would be saved whereas in other cases, the provisions of Martial Law Regulation No,115 or Act H of 1977, cannot be enforced,
28. In view of the afore-said discussion, we while allowing all these writ petitions, set-aside all the impugned orders of Federal Land Commission, cancel consequential mutations attested on the basis thereof and remit all these cases to Chief Land Commissioner, Khyber Pakhtunkhwa with the following directions:--
(i) To probe in the claims of those persons who hold the properties under decrees of "Land Dispute Enquiry Commission"; firstly, that whether they have obtained the properties after settlement more than the terms of the decrees or otherwise; secondly, whether their ownership, in their own right, surpasses the ceiling of 12000 Produce Index Units without counting the same in the holding of the declarants/the descendants of Ex-Ruler of Swat;
(ii) To probe into the vires of the purchasers of properties from the decree holders of "Land Dispute Enquiry Commission" and assess their ownership in terms of preceding Para 1.
(iii) To ascertain the veracity of claims of bona fide purchasers of Produce Index Units from some of the declarants and decide as to whether their ownership surpasses the ceiling of 12000 Produce Index Units without counting the said property in the pool of the original declarants;
(iv) To obtain the choice of declarants, the descendants of Ex-Ruler of Swat about un-allotted lands in view of order of Land Commissioner dated 21.8.2006;
(v) To verify the claims of tenants in accordance with the procedure provided in the Land Reforms Laws and then to decide the matter accordingly;
(vi) Above, all this whole process and exercise shall be subject to the declaration of Shariat Appellate Bench of the Supreme Court in Qazalbash Wae case, PLD 1990 Supreme Court-99. The allotments which have already been made before the target date of 23.3.1990, shall be protected, however, no fresh resumption or allotment shall be made, as it tantamounts to violation of the judgment of Supreme Court, supra.
29. Needless to mention that the Commission shall summon and hear all the interested parties including petitioners as well as respondents and probe the matter in their presence and decide the same accordingly by affording full opportunity of hearing to all the stakeholders. The Chief Land Commissioner shall depute an upright and honest official of the Provincial Land Commission, assisted by the official of same caliber to comply with the above directions. As the disputes are lingering on for last four decades, so it is directed that the matter be finalized in a shortest possible time, preferably within a period of six months.