RAZA AHMAD KHAN, J.--By this Writ Petition Abdul Karim petitioner has invoked the Constitutional jurisdiction of this Court seeking declaration to the effect that the orders of Chairman Federal Land Commission as also of the Chairman, Tribunal, Land Disputes, Dir, Swat and Chitral (respondents Nos. 5 and 6 herein) dated 25-7-1976 and 17-12-1981 respectively are illegal, void, without jurisdiction and of no legal affect.
2. The facts leading to the present petition, briefly stated, are that one Nisab, father of Mst. Bibi Fatima (respondent No.l herein), was originally the owner of the disputed land measuring 7 Jareeb situated m village Toryanda (Ayun) Tehsil and District Chitral. It is the petitioner's case that Nisab gifted the said land and other property to one Amir Muhammad, father-in-law of respondent No. 1 sometimes in February, 1940. Amir Muhammad along with some other land sold the disputed land to Khan Bahadur Dilaram Khan (respondent No.2 herein) vide sale-deed dated 29-4-1944 which was duly confirmed by His Highness Muzaffarul Mulk on 30-4-1944. The land in question, besides other properties of respondent No.2 was attached in lieu of a decree for a sum of Rs.83,343 and was put to auction on 10-2-1965 vide notice of the then Deputy Commissioner Chitral dated 27-1- 1965. It was purchased by one Abdul Karim (other than the present petitioner) but by means of a mutual agreement, was returned to respondent No.2 the same year. Latter the disputed land along with some other properties of respondent No.2 was handed over by the Government to one Masud Ahmad Khan in lieu of Rs.1,05,000 which respondent No.2 owed to him. Again vide compromise deed dated 7-8-1972 between respondent No.2 and the said Masud Ahmad Khan, duly attested by the Judicial Council, the subject land of this petition remained as mortgage with the latter for a sum of Rs.30,000.
3. It was in January, 1973 when the petitioner came into picture and purchased the property in question for a sum of Rs.35,000 as per sale-deed dated 31-1-1973 registered on 5-2-1973 and took over the possession as well. Meanwhile Chitral Land Disputes Enquiry Commission came into being and on an application dated 15-1-1972 moved by Mst. Bibi Fatima respondent No.l herein alleged that the land in question was owned by her husband namely Nasirud Din who was said to be of an unsound mind, on the basis of a gift deed purportedlyexecuted by the said Nisab on 1-1-1940 and with the prayer that the land should be restored to her. The Commission seems to have accepted the application and recommended the restoration of the land to the applicant vide their report dated 7-9-1972.
4. On gaining the knowledge of these proceedings before the commission, the petitioner preferred an appeal before the Additional Deputy Commissioner Chitral (respondent No.3 herein).
Respondent No.2 also filed a separate appeal. The Additional Deputy Commissioner, after examining such oral and documentary evidence as produced by the parties, arrived at a conclusion that the petitioner is a valid and bona fide purchaser of the land and thus, vide his detailed order dated 24-1-1976, turned down the recommendations of the Enquiry Commission.
Respondent No.l called it in question before the Joint Secretary, Chitral Land Disputes Enquiry Commission, Board of Revenue N: W.F.P. (respondent No.4 herein) but this effort of hers proved abortive inasmuch as the same was dismissed in limine vide order dated 12-2-1976. Respondent No.l where after challenged the aforesaid order before the Chairman, Federal Land Commission (Respondent No.5 herein) where her appeal was accepted vide his order dated 25-7-1976.
5. Aggrieved of the aforesaid order of respondent No.5, the petitioner filed Constitutional Petition No.304 of 1976 in this Court raising, inter alia, the question of the jurisdiction of respondent No.5 on which ground it was admitted to full hearing by a learned Division Bench of this Court vide its admitting note dated 7-12-1976. During its pendency, however, President's Order No.12 of 1980 was promulgated on 10-9-1980, giving a right to an aggrieved person to file a review of such order of the respondent No.5 as he passed in the instant case on 25-7-1976. In view of this development, the writ petition was withdrawn, a review petition was duly filed before the Chairman, Tribunal Land Disputes, Dir, Swat and Chitral (respondent No.6 herein) but the same was dismissed by the order of the learned Chairman dated 17-12-1981. This gave a cause of action to the petitioner to impugn the orders of respondents Nos. 5 and 6 and hence this petition.
6. We have heard Mr. Muhammad Sardar Khan, Advocate learned counsel for the petitioner and Qazi Muhammad Anwar, Advocate learned counsel for respondent No.l as also Mr. J.D. Akbarji, learned Advocate-General for respondents Nos. 3 to 6 at length and also perused the available record with considerable degree of care.
7. It is contended on behalf of the petitioner that respondent No.5 was not possessed of any appellate powers and in fact he has passed his impugned order presumably a/s 6 of Settlement of Disputes of Immovable Property (Chitral) Regulation III of 1974 (hereinafter to be called as the Regulation III of 1974) which provides for the settlement of disputes in regard to immovable property in the former State of Chitral. According to the learned counsel he had no jurisdiction to pass such an order as the impugned one, inasmuch the dispute between the petitioner and respondent No.2 was not such as to have come within the purview of Clause (2) of section 3 of Regulation III of 1974. He further contended that respondent No.5 could not legally interfere with the concurrent findings of fact of two lower forums viz. Respondents Nos.3 and 4, in exercise of its revisionary jurisdiction and on this score too the impugned orders of respondents Nos.5 and 6 are liable to be set aside.
8. On the other hand learned counsel for respondent No.l maintained that there had been an amendment in clause (2) of section 3 of Regulation III of 1974 enforced vide Regulation II of 1976 whereby an Explanation was added and the amended Clause (2) when read with the Explanation, the predecessor-in-interest of the petitioner, namely respondent No.2, being a `Mehtar Jao' falls within the category of Ex-Mehtar of the former State of Chitral and thus a dispute between the petitioner and respondent No.l would be covered under clause (2) of section 3 ibid.
9. At the same time he has alleged that the petitioner has not come with clean hands to this Court and as such is not entitled to any relief from the Constitutional and discretionary jurisdiction of this Court. In this regard he has referred to certain factual aspects of the case which are mostly disputed and we have no hesitation in saying at this very stage, that no such disputed question of facts can be raised or looked into in the proceedings before us and, therefore, we refrain to enter into the merits or demerits thereof. Instead we would like to confine ourselves in dealing with the legal aspects of the case and that will be in conformity with the principle and practice followed by superior Courts in their Constitutional jurisdiction. However, he further contended that the petitioner never raised the question of jurisdiction before any of the two lower forums and as such cannot be allowed now to raise the same.
10. The controversy between the parties before us have thus narrowed down to examine as to: (i) whether respondents Nos. 5 and 6, and for that matter even respondent No.3, were possessed of the jurisdiction to hear the matter relating to the land in question requiring a decision -in a dispute between two contending owners; (ii) whether the petitioner is estopped to raise the aforesaid question at this stage without having raised it before the lower Tribunals and (iii) whether respondent No,5 has validly exercised his revisionary powers under the law.
11. The relevant provision of law is embodied in clause (2) of section 3 of Settlement of Disputes of Immovable Property (Chitral) Regulation III of 1974 as amended by Regulation 11 of 1976, which may be reproduced in extenso with advantage:-- "Definitions:--In this Regulation, unless the context otherwise requires,--
(1) `Commission' means the Dir and Swat Land Disputes Enquiry Commission appointed by the Provincial Government under its Notification No.10/5-HSLG-II(TA), dated the 13th November, 1971;
(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; and is a dispute.--
(a) which had been inquired into by the Commission and in respect of which it had submitted its report; including a dispute in respect of which the Commission had withheld its findings because of a direction issued by the Provincial Government.
(b) which was not inquired into by the Commission because of a directive issued by the Provincial Government.
(c) Which, not being a dispute referred to in paragraph(b), was not inquired into by the Commission; or
(d) which may be raised after the commencement of this Regulation by an individual who could not raise it before the Commission earlier."
"Explanation.--For the purposes of this clause, `ex-Mehtar' includes all persons who have been Mehtars of the former State of Chitral after the year 1930 and their descendants."
12. A bare reading of the above-cited provision would indicate that the "dispute" ought to relate to the ownership of, or any right or interest in an immovable property, in the former State of Chitral, to which the parties should the ones as enumerated in paras. (i) to (iii) and as such the dispute should be of a nature and categories as mentioned in paras. (a) to (d) of clause (2) of section 3 of Regulation III of 1974.
13. A reference to the record, however, reveals that the dispute between the petitioner and respondent No.2 before respondents Nos.5 and 6 herein was although a claim of ownership in an immovable property in the former State of Chitral, yet the parties thereto, being contesting owners of the disputed land, did not fall within any of the three categories mentioned in paras (i), (ii) and
(iii) of clause (2) of section 3 of Regulation III of 1974. To speak more specifically the parties to the dispute were neither the tenants and the ex-Mehtar of the former State of Chitral or claimant landlord and the ex-Mehtar of former State of Chitral nor the landlord and tenants. Even when examined in the context of the Explanation added to this clause vide Regulation II of 1976, according to the learned counsel for respondent No.l `Mehtar Jao' is a child born by a woman not legally wedded to the Mehtar of Chitral. The veracity of the version notwithstanding, there is no material before us, nor the learned counsel has rendered us any assistance to determine as to whether the Mehtar Jao can be deemed a "descendant" of the ex-Mehtar. In our view only legitimate heir of the ex-Mehtar can fall in line with the descendants, and expression used in the newly-- added Explanation to clause (2) of section 3 of Regulation III of 1974 but we refrain to give any definite finding over the question, for, it is a matter which needs proper explanation and a conclusive pronouncement in this behalf. For the purpose of the instant case, suffice will it be to state that there had been no specific evidence of the petitioner being Mehtar Jao and, even if there is any, such evidence being not a conclusive proof to deem the petitioner as a "descendant" of the ex-Mehtar within the meaning of the aforesaid explanation, we do not consider it fit to give any decisive pronouncement in this regard. Viewed the matter in this perspective we have no hesitation in holding that the dispute between the petitioner and respondent No.l was not a dispute as defined in clause (2) of section 3 of Regulation III of 1974 and accordingly could not be adjudicated upon by any of the functionaries under Regulation III of 1974 in that they were possessed of no such jurisdiction as to take cognizance of the matter, much less to decide it as per their impugned orders.
14. The learned Advocate-General on behalf of respondents Nos. 3 to 6 while opposing the writ petition tried to separate the third contingency attached to a `dispute' as mentioned in sub- clauses (a) to (d) of clause (2) of section 3 of Regulation III of 1974 by submitting that in such a situation the requisite categories of the parties to the dispute as per paras. (i) to (iii) shall not be applicable. We feel that this tantamounts to stretching the law too much and beyond the scope of such interpretation as can validly be put to the above quoted provision. Since it does not seem to be commensurate with the scheme of the provision and the object behind it, we therefore, do not subscribe to this view of his.
15. Adverting to the point of not raising the question of jurisdiction before the lower forums, it may be noted, in the sequence of events, that it was after Land Enquiry Commission's recommendations that the petitioner, in the ordinary course, had to move the higher forum i.e. Additional Deputy Commissioner, Chitral, who, after taking into consideration the entire record m support of the respective contentions of the parties, turned down the recommendations of the Land Enquiry Commission and held the petitioner as bona fide purchaser of the land in question. It was then, the respondent No.l who went to the Joint Secretary, Chitral Land Disputes Enquiry Commission, Board of Revenue. N.--W.F.P. Peshawar (respondent No.4 herein) against the order of Additional Deputy Commissioner where no notice was issued to the petitioner and the decision was given against the respondent No.l in limine, thus affording no opportunity to the petitioner to raise the question of jurisdiction.
16. Again it was respondent No.l who questioned the order of Additional Deputy Commissioner (respondent No.3 herein) as also of Joint Secretary (respondent No.4 herein) before the Chairman, Federal Land Commission (respondent No.5 herein) where the petitioner had to submit to the authority of the Commission. Yet, notwithstanding this, the petitioner could not be held to have conferred jurisdiction on respondent No.5 which he did not possess. For, B jurisdiction on a Tribunal can by no measure be conferred, whether be it by connivance, acquiescence or even by agreement.
17. Before the respondent No.6 however, it transpired from the record that the very first ground in his review petition was about the jurisdiction of the lower forums, though it did not find any mention in the impugned order of respondent No.6. But we cannot be unmindful of the fact that the question of jurisdiction has been the anchor argument of the petitioner in all these proceedings and he could not afford to have avoided to press into service before respondent No.6. Rather, though un- usually, we in the special circumstances of this case and knowing a little as to how the Federal Enquiry Land Commission was working then, have reasons to believe, and in this context tend to agree with the learned counsel for the petitioner, that it was raised before the learned Chairman, Federal Enquiry Land Commission but was omitted in the impugned order. In this connection it will be also relevant to refer to the earlier Writ petition No.304 of 1976 filed by the petitioner where precisely the same point of jurisdiction was raised on the ground of there being no such dispute as would fall within the mischief of clause (2) of section 3 of Regulation III of 1974 as is apparent from the very admitting note of this Court and this fact further lends support to our above made assumption in this regard.
18. We have given our serious consideration to the point involved and we are of the considered opinion that on the question of not raising the plea of C jurisdiction before the lower forums and raising the same for the first time in the writ jurisdiction before the High Court, even if presumed to be a correct state of affairs, a rigid view, if taken by not allowing the petitioner to raise the same is likely to cause a miscarriage of justice, in that it may leave the party, otherwise entitled to without any relief or leaving a decision in the field which may perpetuate inequity and injustice, simply on the ground that the question of jurisdiction of the authority passing such order has not earlier been raised. Furthermore, we cannot lose sight of the fact that, right from 1944 upto 1973, the property in dispute has never been possessed by, or on behalf of, respondent No.l and it was by the respondent No.5 who ordered the restoration of the disputed land to her in 1976. It was by operation of law that a Writ Petition No.304 of 1976 filed by the petitioner had to be withdrawn by him in order to avail the opportunity of filing a review petition and having failed to achieve his object, there, the present writ petition was filed which remained pending before this Court for about nine years and it will amount to denial of justice to the petitioner to refuse to interfere, after the passage of such a long time, on sheer technical ground, that the legal question regarding the jurisdiction was not raised before the lower forums. We are further of the view that, in the circumstances of the instant case, such omission, if any, should not disentitle the petitioner absolutely to raise it in the Constitutional jurisdiction of this Court. For, Courts of equity have not refused the relief merely on this ground and more particularly when the lack of jurisdiction of the lower forums is apparent from the very face of the record.
19. Regarding a question raised by the learned counsel for the petitioner relating to the revisionary jurisdiction of respondent No.5, there cannot be two opinions that in respect of any state of facts, concurrently found by two lower forums, after judicially considering the same, cannot be interfered with in exercise of the powers conferred on a higher forum which are revisionary in nature and we tend to agree with the learned counsel for the. Petitioner that on this score too the impugned order of respondent No.6 suffered from incurable infirmity inasmuch as both the respondents Nos. 3 and 4 have given their finding of fact after takinginto consideration each and every piece of evidence produced before them and arriving at a conclusion which they could not escape m the circumstances of the case.
20. The upshot of the foregoing discourse is that this petition succeeds and the impugned orders of respondents Nos.5 and 6 are hereby declared to be without jurisdiction, without lawful authority and of no legal affect as these are not covered by the relevant provisions of the Statute. In view of the legal question involved, the parties are left to bear their own costs.