MUHAMMAD AZAM KHAN, J.--This is a writ petition filed under Article 9 of the Provisional Constitution Order, 1981 wherein the petitioners are seeking issuance of an appropriate writ annulling the recommendations of the Land Disputes Enquiry Commission, Dir-Swat and the orders passed on the basis thereof by Respondents No.24 to 26 on 22-5-1972, 30-6-1973 and 9-6-1982, respectively, as bc---;nQ illegal, arbitrary, void, without jurisdiction and without lawful authority.
2. The petition involves a land dispute which arose way back in 1971 when Abdul Ghafoor and others, Respondents 1` to 23 herein, on their own behalf and as representatives of 'Kas Wals' made an application under Martial Law Regulation No.123 of 1972 (hereinafter referred to as the Regulation) to the Dir--Swat Land Disputes Enquiry Commission, claiming the land described in local terminology as 10 rupee 'Daftar' out of total of 60-rupee `Daftar' of Kas Lalonai. They asserted that they were `Pakhtoons' while Buladar etc. Petitioners herein, were 'Non-Pakhtoons' being Guars were tenants under them. The petitioners resisted the claim, denying that they were either Gujars or holding the land as tenants. They contended that they were 'Pakhtoons' belonging to the tribes of Daulat Khel, Khwaza Khel, Bunirwal and Papim and for more than last nine generations had enjoyed the land as owners.
3. The Enquiry Commission took evidence of the parties, both documentary and oral and basing on the same recommended that the Respondents be declared as owners of the land and the petitioners as tenants under them. In accordance with the recommendations, under Paragraph 3 of the Regulation, the Deputy Commissioner, Swat passed order dated 22-5-1972, accepting the respondents' claim. The petitioners questioned this order byway of appeal but the same was dismissed by a short order dated 30-6-1973 recorded by an O.S.D. Against the order of the O.S.D.
They filed a revision petition which succeeded before a learned Member of the Federal Land Commission who by his order dated 29-5-1975 declared the petitioners to be owners of the land and not its tenant:
4. The said order was challenged by Respondents 1 to 23 in Writ Petition No.578 of 1975 in this Court which petition was dismissed by a Division Bench vide order dated 29-3-1977. This appeared to be the end of the matter but an Order later known as President's Order No.13 of 1980 was promulgated whereby a new jurisdiction by Article 5-C was conferred on the Federal Government or any person authorised by it in that behalf to review suo motu or on an application of an aggrieved person an order earlier passed. 1n pursuance to the said order, a Single Member Tribunal, comprising Mr. Justice (Retired) Qaisar Khan, was set up to review the cases of land disputes pertaining to the areas of Dir, Swat and Chitral. The respondents preferred a review petition before the Tribunal who by order dated 9-6-1982 reversed the order of learned Member, Federal Land Commission dated 29-5-1972, and restored that of the Deputy Commissioner dated 22-5-1972, based on the recommendations of the Enquiry Commission, by which the respondents stood declared as owners of the land and the petitioners as tenants under them. As a result, the petitioners invoked the constitutional jurisdiction of the High Court challenging the authority of the Federal Government or its nominee to review or reverse the earlier order.
5. The contention of the petitioners prevailed and the petition was allowed observing that the Tribunal had no jurisdiction to review the order of the Federal Land Commission which stood merged with the order of the High Court. Accordingly, the Tribunal's order was set aside.
6. Against the order, the respondents filed an appeal before the Supreme Court which accepting the same by order dated 16-3-1987 directed disposal of the writ petition on merits.
7. The question if the order of Land Commission had merged with that of the High Court passed in Writ Petition No.518 of 1975 and as such stood precluded from being examined in the instant petition, though clearly determined in the order of the Supreme Court, was again raised by the learned counsel for the petitioners, contending that the order dated 29-5-1973 of the learned Member Federal Land Commission was not reviewable by the Chairman, Land Disputes Tribunal as an order endorsing it had been made subsequently by the High Court.
8. Next he contended that even otherwise the order of the Federal Land Commission deserved to be maintained, proceeding as it did on detailed examination of the evidence on record, with reference to the relevant documents which the learned Chairman, Land Disputes Tribunal had ignored to consider.
9. He also contended that apart from the overwhelming evidence establishing long-standing and uninterrupted possession of the petitioners over the land, it was also admitted by the respondents that they had held the land for more than 200 years. The possession was without payment of rent, he added.
10. The objection on the basis of merger of the order of Member, Land Commission dated 29-5-1973 with that of the High Court seems not tenable to us. It has been dealt with and settled by the Supreme Court after reviewing the entire situation in the light of earlier pronouncements. The relevant part of the Supreme Court's judgment is set out below:- "Our perusal of the judgment of the High Court shows that no decision was rendered on the merits of the case. On the other hand, it was found that the order of the Federal Land Commission was not without jurisdiction, thus not without lawful authority. Therefore, right or wrong, it was not considered necessary to interfere with it in the Constitutional jurisdiction of the High Court. That being so, in the circumstances of this case, the forum constituted under the new law (Presidential Order No.13) was, regardless of any other consideration, competent to review the order of the Federal Land Commission. It would not in any case, amount to the review of or interference with the High Court judgment. If, however, the review would not have been permitted by a statute, we might have examined further implications of the High Court judgment."
11. Accordingly, it is permissible to see if the order of the Land Commission had been reviewed on adequate grounds.
12. In coming to find that the petitioners are holding the land as owners and were not tenants under the respondents, the Land Commission appears to have relied on the documents referred to in the order as Exh.DA., Exh.DA./1, Exh.DA./2, Exh.D.A./3, Exh.D.A./4, Exh.D.A./5, Exh.D.A./6 and Exh.D.D./1.
On the basis of these documents the Commission held the petitioners to have proved their stand of being owners of the Land. Copies of these documents have not been placed before us so that after a look at them we could have formed our own view with regard to their impact in proof of the fact that the petitioners had been holding the land as owners and never shared its produce with the respondents. These documents have also not been individually referred to by the Chairman, Land Disputes Tribunal, in order to discard the same. However, from the observations of the Federal Land Commission recorded in relation to them it can be seen that most of these documents were applications made by the petitioners and they were not in the nature of documents which prove the right of ownership.
13. That apart, they appear to have acknowledge while recording evidence before the Enquiry Commission that the Ex-Ruler had directed them to leave the land to Miangans, i.e. The respondents and also forced them to pay `Ijara' to them. It can also be discerned that they had never dealt with the land in the manner as owners do, selling or mortgaging the land. It is really strange that during the long period of 200/250 years they never felt the need to sell, mortgage or lease any portion of the land. It was not a small area that they were holding. It was as such as one- sixth of the total. At least some portion thereof should have been dealt with by owners, making sale, mortgage or exchange thereof. Nothing of the sort ever happened.
14. We also observe that documents Exh.DA. To Exh.D.D. On which the Federal Land Commission placed reliance as proof of the petitioners' claim had been seen by the Chairman, Land Disputes Tribunal. Though he did not. Discuss them individually, yet he did examine them and found them falling short of the requisite standard of proof-Besides the Tribunal also had seen orders of the Ex-- Ruler treating the Miangans as owners and the Kasswals as their tenants. The report of Enquiry Commission, Annexure A on the file, also mentions the various documents examined by them.
15. Accordingly, we are of the view that preponderance of the evidence is on the side of the respondents and they are the owners of the land: The petitioners have been in possession of the land for over two centuries but not as owners but as tenants. Possession as tenant whatever its duration and not the holder an owner.
As such, we maintain the order of Land Disputes Tribunal and dismiss the constitutional petition but leave the parties to bear their own costs.