' FAZAL ILAHI KHAN, J.-This judgment will also dispose of the following writ petitions as similar questions of law and facts are involved in all of them.
(1) W. P. No, 5 of 1982: Said Nawab Mian v. Federal Government and others:
(2) W. P. No, 6 of 1982: Amir Gul v. Federal Government; W. P. 7 of 1982: Mian Moambar and 4 others v. Miangul Shahzada Jehanzeb etc.
(3) W. P. No, 8 of 1982: Mahal Bacha v. Miangul Shahzada Jehanzeb;
(4) W. P. No, 9 of 1982: Said Wahid and others v. Miangul Shahzada Jehanzeb etc;
(5) W. P. No, 13 of 1982: Hazrat Muhammad and others v. Miangul etc;
(6) W. P. No, 40 of 19%2: Sultan Zaman v. Miangul Shahzada Jehanzeb etc;
(7) W. P. 135 of 1982.
Shah Parveen v. Miangul Shahzada Jehanzeb etc;
(8) W. P. 311 of 1982: Qamar Mian v. Mian Gul Shahzada Jehanzeb etc;
(9) W. P. No, 371 of 1982: Ali Haider and others v. Mian Gul Shahzada Jehanzeb etc;
(10) W. P. No, 276 of 1982: Habibur Rehman and 4 otherrs v. Said Ali and others;
(11) W. P. No, 158 of 1982: Mian Gul Darwesh and 10 others v. Mian Gul Shahzada Jehanzeb etc;
(12) W. P. No, 159 of 1982: Shah Madar v. Mian Gul Shahzada Jehanzeb etc;
(13) W. P. No, 160 of 1982; Shah Room v. Mian Gul Shahzada Jehanzeb etc;
(14) W. P. No, 277 of 1982: Ajab Khan 5 others v. Amirzad and etc.
(15) W. P. No, 306 of 1982: Firdaus Khan v Mian Gul Shahzada Jehanzeb etc; and
(17) W. P. No, 307 of 1982: Sultan.Sikandar v. Mian Gul Shahzada lehanzeb etc; and
(18) W. P. No, 19 of 1982: Mehrosh v. Mian Gul Shahzada Jehanzeb etc,
2. In the present writ petition bearing No, 4 of 1982, the order dated 22-10-1981 of the Chairman, Tribunal Land Disputes, Dir, Swat and Chitral (hereinafter to be called Chairman Tribunal) vide which review petition filed by respondents Nos. 2 and 3 against the order of Member, Federal Land Commission dated 25-1-1975 passed in revision under paragraph 5 of Martial Law Regulation No, 123, as amended from time to time, was accepted.
3. It was on 15th August, 1969 when by West Pakistan Regulation No, 1 of 19o9, the Administration of Dir, Chitral and Swat was taken over by the Provincial Government of West Pakistan and the three new Districts of Dir, Chitral and Swat were created. Under this new set-up, several serious disputes arose between the inhabitants and the ex-Ruler of States in respect of lands allegedly confiscated and forcibly occupied by the ex-Ruler. The Provincial Government, therefore, constituted an Enquiry Commission in exercise of its powers under sub-clause (b) of Clause (MII) of the Dir, Chitral and Swat (Administration) Regulation, 1969 published vide Notification No, o6-So (SPKL)H-D/70, dated 8-10-1970. The Commission made detailed enquiry in respect of the disputes raised before it and thereafter submitted its detailed report. On 11th of April, 1972, the then Chief Material Law Administrator Promutated Martial Law Regulation Nos. 122 and 123. The former known as the Devolution and. Distribution of Property (Dir and Swat Regulation No, 122) and the later known as Settlement of Immovable Property (Dir and Swat Regulation No, 123). Under the former, the Provincial Government was authorised to determine, in the light of Enquiry Commission's report and a general directive of the President as to what property was the State property and what part of it was the personal property of ex-Ruler or his heirs and to determine their respective shares.
Under Regulation No, 123, the Provincial Government was to decide all disputes relating to ownership of, or any right or interest in any immovable property in the former States of Dir and Swat to which the tenant and ex-Ruler of the said former States or their respective heirs or the claimant/landlord and the ex-Ruler were parties. Report in respect of the former State of Chitral was published later and thereafter vide Regulation No, 2 of 1974 (called the Distribution of Property Chitral Regulation No, 1974) and Regulation No, 3 (called the Settlement of Immovable Property of Chitral State) was published on 4-10-1974 which is to the same effect.
4. The scheme of the Regulation No, 123 relevant in the content of the present writ petition is that under sub-clause (2) of paragraph 3 subject to any general directive of the Federal Government, the decision of a dispute under sub-paragraph (1) and the determination of the respective claimants' rights and interest of the parties is to be made on the basis of the recommendations of the Commission. Under paragraph 4, following the decision of the dispute under sub-paragraph (1) of paragraph 3 (by the Provincial Government or an officer authorised by it in this behalf) on an application made to the Provincial Government may order that the decision be enforced or given effect to by the use of such force as may be necessary. It was further provided that where the authorit by whom the decision was taken is an officer, any person aggrieved by the decision may, within 30' days of the date of the decision, submit an appeal to the Provincial Government. Under paragraph 5 of the unamended Regulation No, 123 of 1972 a decision of the Provincial Government and subject to the decision of the Provincial Government in appeal a decision of an Officer authorised in this behalf shall be final. However, it was provided that the President or any person authorised by him in this behalf may, either on his own motion or on the application of any person or on the application of any person aggrieved by such decision may, within 90 days of the date of the decision of the Provincial Government or the Officer authorised by it and pass such order of the President or the Officer authorised by him shall be final.
5. In the instant case, the petitioner raised a dispute before the Commission that the land in dispute was illegally confiscated and forcibly occupied by the ex-Ruler and predecessor-in- interest of respondents Nos. 2 and 3 herein. The Commission, after making proper enquiry and recording evidence of the parties, found that the petitioner and other Miangan of Islampur, who claimed extensive property as against Badshah Sahib ex-Ruler, either themselves or through their predecessor-in-interest, have sold their lands in dispute in favour of Badshsh Sahib. The learned Deputy Commissioner (Officer authorised by the Provincial Government) under paragraph 3 of the Regulation made a decision on the basis of recommendations. Plaintiff aggrieved by the decision filed an appeal before the Officer on Special Duty (the authority appointed by the Provincial Government for hearing the appeals). However, his appeal was dismissed and the order of the Deputy Commissioner was maintained. The petitioner thereafter filed a revision petition before the Federal Land Commission. The learned Senior Member, Federal Land Commission accepted the revision petition, set aside the judgment and orders of the Deputy Commissioner passed on the recommendation of the Commission and that of the Provincial Government in appeal and ordered the restoration of the suit property to the petitioner/claimant vide his order dated 25-1-1975.
6. We may here point out that Martial Law Regulation No, 123 was amended by Regulation II of 1975, and by President Order No, 13 of 1980. And by President Order No, 10 of 1981 by which provision for review against the order of Federal Land Commission passed in revision was made by addition of paragraph 5 (c) which is as follows:- "5-c. -(1) The Federal Government or any person authorised by it in this behalf may at any time on its or his own motion review any order passed under paragraph 5-B as it existed immediately before the commencement of the Dir and Swat (Devolution and Distribution of Property and Settlement of Disputes of Immovable Property) (Amendment) Order 1980, hereafter in this paragraph referred to as the said order and on reviewing modify, reverse or confirm the same: ' Provided that no review shall be permitted in cases where an order has been fully implemented.
(2) Any person aggrieved by an order passed under paragraph 5-B as it existed immediately before the commencement of the said order may, if the order is unimplemented on the date of such commencement apply for review of the order to the Federal Government or any person authorised by it in this behalf and the Federal Government or such person may modify, reverse or confirm the same: ' Provided that:
(a) An application for review of an order shall not be entertained unless it is made within ninety days of the date of the making of the said order or unless the applicant satisfied the Federal Government or the person authorised by it that he had sufficient cause for not making the application within that period, and
(b) The order shall not be modified or reversed unless reasonable notice has been given to the parties effected thereby to appear and be heard in support of the order.
(3) While deciding any matter under this paragraph, the Federal Government or the person authorised by it shall have all the powers of an appellate Court under the Code of Civil Procedure, 1908 (Act V of 1908).
(4) If, while reviewing an order under this paragraph, the Federal Government or the person authorised by it remands a case to the Provincial Government or an Officer authorised by it, the case shall be deemed to be a dispute to be decided under paragraph 5-A, as the case may be."
7. Respondents Nos. 2 and 3 aggrieved by the Order of. Senior Member, Federal Land Commission referred to above filed a review petition under paragraph 5 (c) of the M.
1.. R. No, 123 before the Chairman, Tribunal appointed under sub-paragraph (2) of paragraph 5 (c) who vide his impugned order dated 22-10-1981 passed the following order:- "From the record it is abundantly clear that Amir Shah sold the whole of his property to Badshah Sahib on 6-5-1940 vide sale Exh. D. D. The reasons given by the Federal Land Commission that the deeds could nor be relied upon are no reasons at all taking into consideration the law and circumstances prevailing in the area at that time. Such deeds could not be examined according to the laws prevalent in Pakistan. As Amir Shah has thumb-impressed the deeds he cannot get out of it. The evidence of the petitioner in this respect was relied upon by the Enquiry Commission and there is no reason to disagree with the recommendation. Amir Shah was, therefore, not entitled to the restoration of his land which he has sold to Badshah Sahib."
8. Amir Shah, through this writ petition, challenged the order passed by the Chairman Tribunal on the following grounds:-
(1) That the review petition was instituted beyond the period prescribed under the law hence the order of respondent No, 1 is without jurisdiction, null and void;
(2) That the order dated 25-1-1975 passed by Senior Member, Federal Land Commission in revision stood implemented on 1-9-1975. Respondent No, 1 had no jurisdiction under President Order No, 13 of 1980 and the subsequent amending President Order No, 10 of 1981 to assume jurisdiction.
(3) That the powers to he exercised in review having not been specified in the regulation interference is to be made on the grounds provided under Order XLVII, C.P.C. That the validity of the sale-deeds could not have been challenged by respondent No, I while sitting in review of the order passed with jurisdiction.
(4) That the President Order No, 13 of 1980 and subsequent amended by President Order No, 10 of 1981 are effective from 15-3-1978 hence decision given or orders passed before the date were not amenable to review jurisdiction under the aformentioned provision of law.
' In addition to the legal objections raised to the judgment and order of the Chairman Tribunal, the validity of the sale-deeds in question on which reliance has been placed by the Commission in the Provincial Government was also challenged. It was further alleged that the Chairman Tribunal was empowered to entertain review petitions against the orders passed under paragraph 5 (c) of Regulation No, 123, hence the order passed by the Federal Land Commissioner in exercise of his revisional jurisdiction under paragraph 5(b) was not subject to review.
9. It may be pointed out that several writ petitions referred to in the earlier part of this judgment have been filed against the judgments and orders of the Chairman Tribunal which are pending disposal in this Court. In all of them one or more of the questions raised above have been raised by the aggrieved parties. It was, therefore, deemed proper that the parties and their learned counsel in those petitions be given opportunity of expressing their review point in the matter. The parties and their learned counsel were accordingly served for the date of hearing and fully heard on the questions required determination in all these petitions.
10. Period of limitation for entertaining review petition under proviso (a) sub-para. (2) of paragraph 5(c) of the Regulation is 90 days of the making of such orders. However, the Federal Government (substituted for President) or the person authorised by it (Chairman B Tribunal in this case) has been empowered to entertain review applications even beyond period of limitation if sufficient cause is shown for not making application within the period.President Order No, 10 of 1981 was published in the official Gazette and enforced on 9-9-1981. The case of the petitioner is that review application filed on 26-11-1981 i. e. Beyond the period of 90 days of the order was not within time. It was further contended that the learned Chairman Tribunal before whom the bar of limitation was ra sed in Review Petition No, 130 Mian Gul 'ahibzada Jehanzab v. Ali Haider etc., decided on 13-6- 1982 illegally held that he took over as a Tribunal on 1-11-1981, therefore, all review petitions filed within 90 days of his assumption of such office were well within time. The conclusion so reached by the authority being of general nature was challenged to be against the provision of law. It was also contended that for the condonation of delay or any other orders for extending the period of limitation for filing review application it was incumbent upon the learned Chairman Tribunal to have applied his mind independently to each individual case before arriving at a conclusion as to whether there was sufficient cause in the particular case for not making the application within the period which the learned Chairman Tribunal failed to do. In support of his contention the learned counsel placed reliance on the judgment Ehsan Ali and others v. District Judge and others (1) The
(1) PLD 1969 SC 167 finding given by the learned Chairman Tribunal in effect and in substance, provided for a new period of limitation starting from his taking over as a Tribunal which is contrary to law and in excess of his jurisdiction.
11. In repelling the contentions it was argued by the learned counsel for the respondents that no objection to the bar of limitation was raised before the Chairman Tribunal, hence it cannot be raised at the stage of hearing in writ jurisdiction.
12. We have perused the impugned order and have not been able to find out that any such objection was raised before the Tribunal. However, this question has been raised in some of the review petitions challenged in the pending writ petition. We would, therefore, like to go through the order of the learned Chairman Tribunal before whom objection of bar of limitation was raised and decided. The learned Chairman Tribunal giving his decision on the point in Mian Gul Shahzada Jehanzab v, Ali Haider etc. Held:- "So far as limitation is concerned, there is no doubt that the review petition had to be filed within 90 days of 10-9-1980 when President Order 13 of 1980 was gazetted but when I had extended the period of limitation in exercise of my powers under the proviso to section 5(c)(2) of President's Order 13 of 1980 because by the time 90 days expired very few review petitions had been filed. I had taken over as a Tribunal on 1-11-1980. I, therefore, fixed the period of limitation as 90 days w,e,f, 1-11- 1989 and, therefore, review petition has been filed within time from this date."
13. No doubt when any special or local law prescribed for any suit, appeal or application, a period of limitation different from the period prescribed therein by the first schedule to the Limitation Act, the proision of section 3 shall apply as provided for by section 29 (2) of the Act, as if such period was prescribed, therefore, in that Schedule as held by their Lordships in Ehsan Ali v. District Judge and others. It has further been held therein whether the plea of limitation was raised or not, it was the duty of the Court to take notice of the point of limitation. The point when subsequently raised in Muhammad Yousaf v. Member, Beard of Revenue (1) explaining the principle laid down in Ehsan Ali's case on which reliance was placed by the learned counsel for the petitioner in that case it was observed by their lordships as follows:- "It is correct that the appeal was barred by time but it cannot be said that the learned Collector was not conscious of this fact. The question of limitation was specifically brought to his notice and in spite of that he allowed the appeal of the said respondent. In these circumstances the view of the High Court that the learned Collector by deciding appeal on merit has impliedly condoned the delay appears to be quite correct. The decision of this Court in the case of Ihsan Ali and others v.
District Judge and others lays down that the authority concerned should be conscious of the question of limitation before deciding the proceeding pending before it."
14. In examination the question of limitation, it must be determined with regard to the nature of the law itself, its character and the purpose behind the enactment. Amendment in the law through President Orders 13 D of 1980 and 10 of 1981 were made as a situation had arisen by large scale interference in revisional jurisdiction by the Federal Land Commission (111970 SCM R 170 with the concurrent findings of the Officers below and report of the Enquiry Commission based on evidence recorded by the Commission. It, therefore, was deemed necessary by the Federal Government to create and constitute special forums with extensive powers for reconsideration of the orders which had otherwise attained finality. For the reason, the legislation of a special character made to meet the situation cannot be construed upon strict legal principle as has been held in Mian Rafiuddin and 6 others v. Chief Settlement and Rehabilitation Commissioner and 2 others (1). In this context when the learned Chairman Tribunal faced with this situation that the review petition was not made before him within the period of 90 days of the passing of the orders pointed out the circumstances which he deemed sufficient within the meaning of sub-paragraph
(2) of paragraph 5 (c) of the Regulation to entertain those applications which have been filed within 90 days of his resumption of the office. It, therefore, cannot be said that the learned Chairman Tribunal did not apply his mind while determining the question of limitation. The order as such passed with jurisdiction, cannot be challenged on that score.
15. There is also no force in the contention of the learned counsel that reliance should not have been placed by the Chairman Tribunal on a finding given in Review Petition No, 140 of 1980, decided on 13-6-1;'82 Mian Gul Shahzada Jehanzeb v. Ali Hafeez in other cases. An Authority who had to exorcise judicial or quasi-judicial jurisdiction having given his decision on a question of law in given facts in issue in a particular situation has to follow the same when confronted with the same question on the same facts and no distinction is drawn for taking a different view unless such earlier decision is set aside by higher forum or Court, as the case may be. Support for the view can be had from Muhammad Muzaffar Khan v. Muhammad Yousaf Khan (2). Undoubtedly on these principles the law of precedent has developed in the judicial history. We, therefore, hold that no exception could be taken to the order of learned Chairman Tribunal enteraining the review application of which he had the jurisdiction to entertain beyond the period of 90 days for the reason, which prevailed with him.
16. It was next contended by the learned counsel for the petitioner that the order dated 25-1-1975 passed by the Senior Member, Federal Land Commission in revision stood implemented within the meaning of sub paragraph (2) of paragraph 5 (c), hence the Chairman Tribunal had no authority to entertain the review petition. There are three classes of cases while considering the question of implementation. First class of casts are those in which persons in possession simply claim declaration of their title and interest in the property by raising a dispute under section 3 of the Regulation for its determination; secondly those cases in which prayer for restoration of possession was made and in which allegedly symbolic possession was delivered to the person in whose favour the order was passed and in the third class are those cases in which physical possession was allegedly delivered on the spot with the use of force by the local administration. The contention of the learned counsel for the petitioners is that in the first class of cases mere declaration was sufficient and no implementation was required as in the case of declaratory decree passed by the civil Court. In these cases, no review application was competent. With regard to the second cases of class, it was contended that though the word implementation has not been defined in the Regulation itself,
(I) P 1979 5 C 253 (2) P I, D 1959 SC (Pale.) 9 yet its ordinary meaning is to give effect to, to fulfil or perform. Hence the delivery of symbolic possession was sufficient compliance of the legal provision for the implementation of the order.
The class of cases in which possession was delivered by use of force stands on strong footing for ousting the jurisdiction of the Tribunal in entertaining the review application.
As has already been observed. M. L. R. No, 123 is special Statute providing special forum for adjudication and special provision for implementation of the orders which attained finality.
Paragraph 3 of the Regulation empowers the Provincial Government or an Officer authorised by it in this behalf for entertaining proceedings in relation to any dispute referred to in sub-paragraph
(1) of paragraph 5(c). Paragraph 4 of the Regulation specially provides that the Provincial Government or an Officer authorised by it in this behalf may on an application made to the Provincial Government older that the decision be enforced or given effect to by use of such force as may be necessary. By reading proviso to clause (1) of subparagraph (c) of paragraph 5 with paragraph 4 referred to in earlier part of the judgment the jurisdiction of the Tribunal is ousted in those particular cases in which the orders stood fully implemented. For ousting the jurisdiction of the Chairman Tribunal, it must be established on record that the decision given in the particular case was given effect to and enforced in a manner and in accordance with the machinery provided for in the Regulation itself. The provision ousting the jurisdiction of a special Tribunal providing for the redress of a person aggrieved must be strictly construed. In these principles, therefore, the ouster clause will come into play and would be attracted to those cases alone in which the decisions requiring implementation have been given and those orders have been enforced in accordance with the provision of paragraph 4 of the Regulation. Hence the first category of cases in which dispute of declaratory nature was prayed and decisions given thereon by no stretch of imagination can be said that the orders stood fully implemented when passed.
They very word fully implemented is suggestive of something done in pursuance of the older passed. The objection of the learned counsel that the order being declaratory in character would be deemed to have been fully implemented ousted the jurisdiction of the learned Chairman Tribunal is misconceived. Regarding the other two categories of cases, two questions need to be resolved. Firstly the decision given by the Chairman Tribunal with the power of an Appellate Court determining the question whether the order has been enforced or not being a question of fact is open to exception in writ jurisdiction and secondly whether the so-called delivery of possession or in other words enforcement of the orders was made within the meaning of paragraph 4 of the Regulation. We have-no hesitation in holding that the question of fact determined by the learned Chairman Tribunal on proper appraisal of the material before him is not open to challenge in writ jurisdiction. Regarding sound possession, it may be pointed out that the Provincial Government has under under paragraph 3 of the Regulation authorised an Officer for giving a decision on the disputes, however, no Officer has been authorised to give effect to or to enforce the decision as required under paragraph 4. Efforts were made to find out whether the Provincial Government has authorised any Officer under paragraph 4 for enforcement of the orders but the learned Advocate- General, N.-W. F. P. When asked to produce such notification, if any, made a statement in Court that though Officers were authorised under paragraph.
3 of the Regulation and notification issued to that effect but no Officer was authorised by the Provincial Government under paragraph 4 of the Regulation to review application to enforce the orders. Even the petitioners who relied on ouster clause referred to above, were unable to point out that they had made any application to the Provincial Government for the enforcement of orders and in pursuance thereof the Provincial Government has enforced it. We, therefore, are of the view that none of the orders in question of the Federal Land Commission impugned in the review petitions before the Chairman Tribunal were fully implemented before filing of the review applications.
17. The next contention of the learned counsel for the petitioners is that the Tribunal should not have interfered with the finding of the Federal Land Commission passed in revision on merits of the case has also got no force. No doubt, the Tribunal has been empowered to review an order passed under paragraph 5(b). His power and the scope of exercise of his power has not been restricted to the principle provided for under Order XLVII of the C. P. C. For making interference special provision has been made under sub-paragraph (3) of paragraph 5(c) that the Tribunal shall have all the powers of an Appellate Court under the Code of Civil Procedure. The powers of the Appellate Court are enumerated under section 96 of the C. P. C. Which is too exhaustive and includes redetermining of questions of fact determined by the order impugned, in the appeal. No objection, therefore, can be raised to the exercise of powers by the Chairman Tribunal for determining the question of fact in the light of the material before him.
18. The contention of the learned counsel that the President's Order 13 of 1980 and the subsequent amended President Order No, 10 of 1981 are effective from 15-3-1978 hence the decision given and orders passed before 15-3-1978 are not amenable to review jurisdiction is also misconceived. M. L.
R. Nos. 122 and 123 were enforced during the existence of emergency declared on 23rd day of November, 1971. The President was pleased to revoke the said proclamation of emergency on the 15th of September, 1977 as published in the official Gazette notification of September, 1977. Under the provision of sub-article (5) of Article 232 of the Constitution, the laws framed were to cease to have effect on the expiry of period of six months after the proclamation of emergency had ceased.
It was, therefore, provided by sub-para. (2) in para. 1 of the President Order No, 10 of 1981 that it shall come into force at once and shall be deemed to have taken effect on 15th day of March, 1978. The date on which the Regulation was a valid existing law. This provision has nothing to do with the orders passed in revision under para. 5(B) of the Regulation as amended by Regulation II of 1975.
Any order passed under para. 5(B) as it existed immediately before the commencement of the order was made subject to revisional jurisdiction. As alredy pointed out Regulation No 123 as amended by Regulation as amended by Regulation II of 1975 was an existing law on 15-3-1978 and thereafter on the commencement of the prescribed order. For the reasons stated above, we dismiss this writ, petition but leave the parties to bear their own costs.