1. ' G. SAFDAR SHAH, J.---The background in which these four petitions for leave to appeal against the two judgments of the Peshawar High Court, dated 18-1-1977 and 26-9-1977 have come up to this Court is as follows:-- ' On the merger of former State of Dir in the territories of N.-W.F.P. The consequential reforms were taken in hand by the Government with the result that for the decision of all disputes relating to the State land of the former State of Dir an Inquiry Commission was constituted under Regulation No,123 of 1972 by the then Chief Martial Law Administrator of Pakistan. The private respondents in all these petitions, therefore, instituted before the said Inquiry Commission proceedings claiming to be the owners of specified chunks of agricultural land and impleaded therein as defendant only the Ruler of the former State of Dir. In proceedings covered by Civil Petition No,24-P of 1977, the Inquiry Commission rejected the claim of the respondents holding that the land claimed by them was the State property to which they had failed to establish their title. In implementation of the said order passed by the Inquiry Commission, Deputy Commissioner, Dir, accordingly passed his consequential order dated 4-10-1972. But the respondents being aggrieved of the said order, without availing the right of appeal before the Provincial Land Commission, N.-W.F.P., filed a revision application before the Federal Land Commission. By order, dated 10-12-1974, the Chairman of the Federal Land Commission allowed the said revision application. In due course when the execution proceedings were taken in hand by respondents, the petitioners came to know that in view of the said proceedings instituted by the respondents, in which they had not been impleaded, the Federal Land Commission had passed the said order in their favour. However, since they claimed to be the owners as well as in possession of the disputed land they filed a writ petition in the High Court against the said order. But the same was dismissed in limine by a Division Bench of the Court, vide judgment dated 18-1-1977.
2. ' In so far as Civil Petitions Nos. 25-P, 28-P and 73-P of 1977 are concerned, the necessary and relevant facts in them are the same except that in the last-mentioned petition the High Court had asked for the parawise comments of Secretary III to the Government of N.-W.F.P. And after having received them dismissed the petition in limine. Now the stand taken in all the writ petitions filed by the petitioners was that they were the employees of the former State of Dir; that in lieu of the rendition of service by them, the disputed chunks of land were transferred to them by the former Ruler on the basis of ownership; that ever since then they had remained in possession of the land as owners; that the respondents had surreptitiously instituted the proceedings before the Enquiry Commission, Dir, falsely claiming therein that they were the owners of the said land; that in the said proceedings they were not made parties and consequently all the said proceedings taken against them, including all the orders passed therein were without jurisdiction and of no legal effect whatever as they had been condemned unheard. These allegations were not only supported by their affidavits, but at least in the two writ petitions (Writ Petitions Nos. 18 and No, 14 of 1977), the petitioners had clearly alleged that they were recently visited by the Tehsildar of the area who informed them that in view of an order passed by the Extra-Assistant Commissioner, Dir, they were required to be evicted from the disputed land.
3. Now in this state of the record, it was essential that the learned Judges in the High Court should have either sent for the comments of the concerned official to satisfy themselves about the claim of the petitioners that they were the owners in possession of the land in dispute or else admitted the writ petitions with notice to respondents to file their written statements. In the events that happened, however, the learned Judges did not deem it fit to adopt the said procedure and instead dismissed all the four writ petitions in limine as under:- "It is remarkable that enclosed with the petition there is a photostat copy (Annex VI) which shows that the former servants of Dir State in possession of the land given to them in lieu of their services will continue their possession till the decision of the Federal Land Commission and if that Commission decides that the property belongs to the Government it will be given to them but if the case is otherwise they will be given gratuity.
(3) The matter can, however, be disposed of on the short ground that M.L.R. 123 has created a special forum of exclusive jurisdiction for all disputes between the tenants and the ex-rulers; landlords and the ex-rulers; and the landlords and tenants but it is conceded that the petitioners never knocked at the door of the forum. This fact alone disentitles them to invoke the constitutional jurisdiction of this Court. The appointment of the Enquiry Commission was widely known in Dir and Swat and if the petitioners kept silent from 1972 to 1977 they should blame themselves. In any case the admission of the petitioners that they were State servants and were possessing that land as such in the opening part of Writ Petition disentitles them to any relief from this Court when the State which happens to be the landlord in their case has contested the matter right up to the Federal Land Commission and has been unsuccessful. The terms in Annex III will in the circumstances also stand in their way."
4. Now with respect to the learned Judges the said line of reasoning adopted by them seems to be fallacious. Assuming for the sake of argument that the photostat copy (Annex VI) referred by them was otherwise unobjectionable, the fact remains that neither before the Federal Land Commission nor at any stage of the proceedings before the other functionaries of the Government were the petitioners impleaded by the respondents, nor indeed is there any indication available on the record to show that the petitioners were aware of the said proceedings. In these circumstances the petitioners had been clearly condemned unheard because in the writ petitions filed by them they had claimed to be the owners in possession of the disputed land and their said allegation had remained uncontroverted.
5. ' The learned Judges in the High Court with respect also seem to have been in error to hold that the appointment of the Inquiry Commission was widely known in Dir and Swat, and if the petitioners kept silent from 1972 to 1977 they should blame themselves. In order to verify this position, we have pointedly questioned the learned counsel for the respondents as well as the learned counsel appearing for the Federal Land Commission and both of them conceded that there was no evidence on the record to support the said finding. From this it would be obvious that the said finding recorded by the learned Judges in the High Court was based on no evidence and consequently the petitioners must be held to have been prejudiced in respect of their valuable rights in immovable property.
6. ' Be that as it may, the main principle to which the fate of these petitions would turn is the basic principle of law enshrined in the hallowed doctrine of audi alteram partem. In the writ petitions filed by them in the High Court, the petitioners had clearly alleged that they were the owners in possession of the disputed lands; and that they had been condemned unheard. The fact that their said allegation was supported by their respective affidavits was itself a sufficient ground to enquire into the matter but unfortunately the High Court dismissed their petitions in limine without even sending for the comments of the concerned officer or calling upon the respondents to file their written statements. Faced with this situation, the learned counsel for the Federal Land Commission as well as Mr. Karam Ilahi Bhatti, the learned counsel for respondents in Petitions No,25-P and 28-P frankly conceded that the impugned judgments of the High Court as well as the orders passed by the various functionaries of the Government including the Federal Land Commission were indefensible.
7. ' In this view we convert these petitions into appeals, and since the learned counsel for the parties have consented that the judgments of the High Court as well as all the orders passed by the functionaries of the Government, including the Federal Land Commission, be set aside and the cases referred back to the Inquiry Commission for fresh disposal, we order accordingly. It may be noted, however, that the respondents in the other two petitions are unrepresented, but since notices were issued to them for today in sufficient time we would proceed against them ex parte and pass the same order in their cases as well. It is unnecessary to add that the Inquiry Commission or its successor would before proceeding with the cases, issue notices to the parties and afford them full opportunity to produce their respective evidence in support of their rival stands. In these circumstances, there would be no order as to costs.