RAZA AHMAD KHAN, J.--Late Nawab Sir Muhammad Farid Khan, Nawab of Darband, owned landed property measuring 2,400 acres which later on was found to be 2,804 acres, within the former State of Amb. It is stated that the erstwhile Government of West Pakistan wanted to acquire this land for the construction of Tarbela Dam as is evident from a letter dated 18th April, 1967 written by Mr. A.G.N.Kazi the then Chairman Water and Power Development Authority, commonly called as WAPDA, addressed to the Nawab. Since the Land Acquisition Act was then not in force in or extended to the Amb State, the compensation was to be negotiated. Sir Muhammad Farid Khan breathed his last in 1971 and survived by Nawabzada Muhammad Saeed Khan son, Bibi Zaitoon daughter and Mst. Rahmat-un-Nisa the widow.
2. Meanwhile M.L.R.115 was enforced on 11-3-1972 and Land Acquisition Act was also extended to the State of Amb on 3-8-1973.
3. While riling declaration as required under M.L.R. 115, Nawabzada Muhammad Saeed Khan did not include the land measuring 2,804 acres in his holdings on a bona fide assumption that the same already stood alienated/transferred to WAPDA for the construction of Tarbcla Dam and as such fell outside the purview of M.L.R 115 of 1972. Same was the stand he took before the Deputy Land Commissioner who accepted it vide his order dated 29-6--1972 and recommended for its exclusion for the purpose, and from the operation of M.L.R 115.
4. Land Commissioner Peshawar Division however, did not agree with the recommendation of the Deputy Land Commissioner on the ground that the acquisition/alienation of land had not yet been finalized and that it would be counted towards the holding of Nawabzada Muhammad Saeed Khan. He, therefore, vide his order dated 10-8-1972, held that: "the declarant will have to surrender this land" The appeal against the aforesaid order before the Chief Land Commissioner, N.--W.F.P.
Peshawar also met the same fate as is apparent from his order dated 22-6--1973 whereby it was held that the land still stood in the name of declarant, that its transfer, in favour of WAPDA, had not been proved and that therefore it could not be excluded from the ownership of the appellant .
5. Aggrieved from the order of the Chief Land Commissioner, Nawabzada Mohammad Saeed Khan preferred a revision petition before the Federal Land Commission. During the pendency of this revision petition, however, Nawabzada Mohammad Saeed Khan is said to have breathed his last. It may also be stated at this stage that by this time the Land Acquisition Act was extended to the State of Amb. The Chairman Federal Land Commission however while, dismissing the revision petition by his order dated 25-4-1976, at the first instance impleaded some of the tenants, namely, Subedar Malik Aman Khan and others as respondents for, in the opinion of the learned Chairman of the Federal Land Commission, they were liable to be effected by the order passed in that revision petition being in cultivation possession of the land in dispute, as they were entitled to have the land transferred in their favour under M.L.R.115; and at the second instance, in the concluding paragraph of his impugned order, he issued a direction to the Provincial Land Commission "to forthwith proceed to transfer the land the deserving tenants who will be entitled to recover the compensation of the land so transferred to them, in case the same is acquired or taken over by WAPDA".
6. The petitioners Nos.l to 7 in the instant writ petition are the legal heirs of Nawabzada Mohammad Saeed Khan while 8 and 9 arc the legal heirs of the other heirs-in-interest of Nawab Sir Mohammad Farid Khan.
7. It transpires that thereafter the petitioner were advised to seek their remedy by way of riling a civil suit. By a judgment dated 13-7-1978 the learned Senior Civil Judge, Abbottabad returned the plaint to the petitioner under Order 7 Rule 10 CPC on the ground that the Amb State is given the nomenclature of Special Area in the Constitution and as such the jurisdiction of that Court having not been extended thereto was clearly barred to decide the question in dispute. The petitioners did not succeed in their appeal before the learned Additional District Judge, Haripur who confirmed the judgment of the learned Senior Civil Judge, vide his order dated 12-3-1980. Aggrieved there from, a revision petition was filed in this Court. It was, however, dismissed vide judgment dated 3-4-1985 on the ground that the Civil Court Ordinance, 1962 was not extended to Amb State at the relevant time, therefore, the learned Senior Civil Judge was right in holding that he had no jurisdiction to entertain the suit even if the dispute raised therein was of a civil nature. It will thus be evident that all the three Courts decided the civil suit solely on the question of jurisdiction and without going into the merits of the case at all.
8. It was in the background of this long-drawn litigation that the petitioners have now invoked the constitutional jurisdiction of this Court seeking a declaration to the effect that the order of the Federal Land Commission dated 25-4-1974 as also those of the Chief Land Commissioner N.-W.F.P.
Peshawar and Land Commissioner, Peshawar were without jurisdiction, unlawful and not warranted by law.
9. We have heard Mr. M.Sardar Khan Advocate, learned counsel for the petitioners, Mr. Mohammad Aslam Khan, Assistant Advocate-General for respondents 2, 3, 4, 6, 7 and 8, Kh. Nazir Ahmed, Advocate learned counsel for respondent No.5 and Qazi Abdur Rashid Advocate learned counsel for respondents 9 to 12 and have also perused the record available, with their valuable assistance.
10. A preliminary objection was raised on behalf of the respondents to the effect that this petition moved in 1985 suffers from laches in that it has called into question the decisions of the forums relating to the Land Reforms, the final order having been passed in 1976 i.e. Almost 9 years thereafter. The learned counsel for the petitioners, however, refuted the objection and maintained that throughout this period the petitioners, or-for that matter their predecessor-in-interest, had been running from pillar to post seeking their remedy before one forum or the other, including the civil Courts, which ended with the judgment of this Court in their revision petition decided on 3-4- 1985 and without any reasonable loss of time the petitioner knocked at the door of this Court on 30-5-1985 by way of their instant writ petition. He, therefore, contended that the petitioners have never slept over their rights and as such the instant petition shall not be hit by the principle of laches. He added that in the circumstances, the only remedy available to the petitioners in order to establishing their rights, was by way of invoking the writ jurisdiction of this Court under Article 199 of the Constitution.
11. In a similar situation the Supreme Court of Pakistan was pleased to hold in case of Gul Haq and others v. Government of Pakistan 1972 SCMR 576 that instead of invoking the jurisdiction of civil Courts in a matter wherein the jurisdiction of adjudication rested exclusively with the Custodian of evacuee property, the proper remedy for the petitioner was to challenge the order of the learned Custodian by way of writ petition.
12. In this context of the matter, on factual as well as legal premises, we have no hesitation in overruling the objection and holding that the writ petition does not suffer from laches.
13. It is submitted before us on behalf of the petitioners:--
(a) that some of the legal heirs were not made parties before the Federal Land Commission and accordingly they are not bound by it as they had been condemned un-heard;
(b) That the land stood acquired by/alienated to the WAPDA and it fell outside the purview of M.L.R.
115 of 1972 and, finally;
(c) that once it was held by the Land Reforms Authorities that this land was owned by the petitioners, then, they had to be given option to exercise their choice of retaining it under para. -11 of MLR 115 of 1972 and that legally neither it could be ordered to be surrendered as was done by the Land Commissioner not any direction could be issued to the Provincial Land Commissioner to forthwith proceed to transfer the land to deserving tenants as was done by the Chairman, Federal Land Commission in their respective impugned orders.
While dilating on the aforementioned contentions, the learned counsel for the petitioners, however, concentrated on, and virtually confined his submissions to, the last contention of his and in this behalf relied upon decision made in cases Malik Faqir Hussain and others v. Federal Land Commission reported in PLD 1976 Lah. 1083 and Muhammad Hayatullah Khan and others v. Federal Land Commission reported in PLD 1977 Lah. 166.
14. On the other hand the learned Assistant Advocate-General contended that the petitioners have set up almost a new case in that while before the Land Reform Authorities and Chairman Federal Land Commission his case pertained to the acquisition/alienation of the land in question, he has now come forward with the plea that irrespective of the aforesaid situation, the impugned orders are the result of illegal exercise of jurisdiction in so far as the applicability of para.11 of the MLR 115 is concerned. The learned counsel for the Federal Land Commission adopted his arguments. On behalf of respondents Nos.9 to 12 it is contended that the land was in fact acquired subsequently under the Land Acquisition Act and that the proper course for the petitioners would have been to have availed their right under the said Statute and particularly under section 18 of the Act. It was finally urged that the petitioners predecessor-in-interest had already exercised his choice of retaining the land under the MLR 115 with particular reference to para.11 thereof and, even if the land in dispute is held to be in their ownership, they will have to surrender some land in lieu thereof which, in the present circumstances, will be an exercise in futility.
15. We have given our serious consideration to the submissions made by the learned counsel in support of their respective pleas.
16. Perusal of paragraph 11 of the MLR 115, later known as the Land Reforms Regulation 1972 (hereinafter referred to as the Regulation) discloses as per sub-para. (1) thereof that "If a person owns or possesses an area of land excluding the area permitted under this para, he shall select out of his holding the area which he is entitled to retain and, in doing so, he shall, as far as possible, select compact block of not less than the, size of economic holding."
17. The case of the petitioners is that while exercising his choice under para. . 11 of the Regulation, he had excluded the land in dispute measuring 2,804 acres on a bona fide assumption that it is going to be acquired by the Government for the construction of Tarbela Dam which assumption was not ill-founded inasmuch as eventually it was acquired and brought under the Tarbela Dam and the order of the Deputy Land Commissioner Hazara dated 29-6-1972 stands testimony to this fact, m that while examining the declaration submitted by Nawabzada Muhammad Saeed Khan, the Deputy Land Commissioner had agreed therewith and excluded the area as such. Accordingly the only question that could be agitated before, and adjudicated by, the Land Commissioner and Chief Land Commissioner N.-W.F.P. As also the Chariman Federal Land Commission, was limited to the extent as to whether or not land in issue was acquired by or/alienated to the WAPDA. In this regard, it is submitted on behalf of the petitioners, that it was persistently and consistently urged these forums that since the Land Acquisition Act was then not applicable to the State of Amb,' the transaction was being effected through private negotiations, though not reached its conclusive stage.
18. It is evident from the record that since the transaction has not been finalized in terms of payment of price or taking over the possession of the land, the Land Reforms Authorities did not feel satisfied as regards the transaction and held the land in dispute still to be owned by, and in possession of, the declarant. In such a situation, it is contended before us that had the Land Reforms Authorities felt contended by holding the land in dispute as belonging to, owned by or constituting part of the holding of, declarant, it would have been well and good; but their order and direction towards assuming the land forthwith cannot be sustained inasmuch as it is against the provisions of pare. 11(l) of the Regulations and has been unlawfully deprived the petitioners to exercise their right of choice to select out of their holdings the area which they were entitled to retain. We find force in this contention of the learned counsel for the petitioner. Surely the impugned order of the Land Commissioner which was upheld by the Chief Land Commissioner N.- W.F.P. And the impugned order of the Chairman Federal Land Commissioner appear prima facie in excess of their jurisdiction when it was held by the Land Commissioner that: "This land shall have to be surrendered:" and the direction of the learned Chairman Federal Land Commission to the Provincial Land Commissioner to: "forthwith proceed to transfer the land to the deserving tenants"
19. We are not impressed by the arguments of the learned counsel for respondents that since the petitioners have already exercised their choice, it will be an exercise in futility to make them avail this choice again, for, we are of the view that this right shall have to be reckoned from the time of the proceeding before the Deputy Land Commissioner and the impugned orders cannot detract them from the exercise of this statutory right under para. 11(1) ibid.
20. Once the Law Reforms Authorities had arrived at a conclusion that the land in dispute constitutes and forms part of the holding of the declarants, it will tantamount to canceling the earlier choice exercised by them and would re-open the way for them to exercise choice afresh cumulatively taking the holdings and inclusive of the one in dispute. In this context of the matter, it cannot be insisted upon the petitioners to restrict their choice they have once made and that too on a bona fide assumption that the land in dispute no more fell in their ownership. The decision in the case Malik Faqir Hussain and others v. Federal Land Commission, Islamabad PLD 1976 Lahore 1083 lends support to the view in that there is no provision anywhere in the main Regulation or any direction or rule which may have given an authority or jurisdiction to the Land Reforms Authority to insist upon a particular type of choice.
21. On examining the effect of the impugned orders, we arrive at an inescapable conclusion that these are violative of para. 11(1) of the Regulation. It is well-settled that when a Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it inasmuch as the Tribunal has the jurisdiction to decide the matter rightly alone and when the Tribunal makes an error of law in deciding the matter before it, it goes outside the jurisdiction and a determination of the Tribunal, which is shown to be erroneous on a point of law, is liable to be struck down in the writ jurisdiction on a simple ground that it is in. Excess of its jurisdiction. We have sought strength for this view of ours from decision of Supreme Court in case Utility Stores Corporation of Pakistan v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447.
22. A half-hearted attempt is made by the learned counsel for the respondents 9 to 12 to question the jurisdiction of this Court with reference to sub-Article (7) of Article 247 of the Constitution, on the ground that the land in dispute is situate in Amb State which forms part of the Provincially Administered Tribal Areas under Article 246 ibid.
23. Apart from the fact that all the functionaries under MLR 115 whose orders are impugned in this writ petition, have been performing their functions in connection with the affairs of the Federation or, as the case may be, the Province of North-West Frontier, within the territorial limits of this Court and accordingly their impugned orders cannot be claimed as immune from the powers of judicial C review vested in this Court under Article 199 of the Constitution, we do not intend to dilate upon this matter much for two-fold reasons. One, that a chain of authorities are in the field right from Nineteen fiftees on the subject, an accumulative affect whereof manifests a tilt in favour of the proposition that the ouster of jurisdiction of the superior Courts, in relation to Tribal Areas, is not to be lightly assumed and that the ouster clause cannot be interpreted so as to exclude the jurisdiction of the superior Courts in matters in which any part or a cause of action accrues or any effective step is taken or performed in or at a place outside the Tribal Areas, affecting the interest of a citizen of Pakistan at large who has the right to be governed by normal laws of the land and in accordance with the procedure there under. Two, that we have already held the impugned orders of the Land Reforms Authorities as violative of the law as contained in sub-para. (1) of para. 11 of the Regulation and an outcome of illegal exercise of their jurisdiction.
24. Consequently we are clear in our minds that the impugned orders of the Land Reforms Authority as also of the Chairman Federal Land Commission are manifestly without jurisdiction, without lawful authority and of no legal effect against the interest of the petitioners in so far as it concerns the exercise of choice of selecting an area which they are entitled to retain under para. 11(1) of the Land Reforms Regulation 1972 out of their total holding including the land in dispute measuring 2,804 acres, and we declare accordingly.
25. This writ petition is, therefore, allowed and the impugned orders including the one passed by the learned Chairman, Federal Land Commission dated 25-4-1974, are hereby modified to the extent indicated above. We, however, leave the parties to bear their own costs.