' SHAFIUR-RAHMAN, J.--- Leave to appeal was granted to the appellants, owners of land and residents of Mauza Mughal Taleri, Tehsil Muslim Bagh, District Zhob, Province of Balochistan to examine the A correctness of the impugned judgment of the Balochistan High Court, dated 14-6- 1981 holding that the jurisdiction of the High Court did not extend to the tribal areas where the disputed land was situated.
2. The appellants had, earlier to the present litigation, instituted a civil suit on 26-11-1958 under Frontier Crimes Regulations (FCR) claiming a declaration of ownership of landed property and seeking injunction against Malik Muhammad Khan preventing him from digging a Karez beyond the land of the appellants. The aforesaid defendant did not dispute the ownership of the appellants but objected to the injunction part as it related to land not in ownership of the appellants. The matter was referred to Jirga who returned a verdict in favour of the appellants which was accepted by both the parties and the Additional District Magistrate decreed the claim on 15-5- 1959, directing further that the parties and their relatives be bound down under section 41 FCR.
Unknown to the appellants, though impleaded as respondent, a revision was filed before the Additional Commissioner by Hanif (predecessor-ininterest of respondents) which was allowed on 10-8-1960, the Additional Commissioner holding as hereunder:-- "As stated in Malik Muhammad Khan's Jawab Dawa dated 1-12-1958, the disputed area comprises of waste land. Moreover, Tehsildar Hindubagh's report dated 19-12-1958 shows that the record of rights is silent so far as the proprietary rights of the said land are concerned. Therefore under section 42(1) of the Land Revenue Act of 1967, as applied to Quetta Division, the land is presumed to belong to the State. This presumption is, however, rebutable under section 42(3) of the said Land Revenue Act. But unless this is done, according to section 42(4) of the Act, the land in question shall be held to be owned by the State ... If the claimants decline to admit the proprietary right of Government and decide to pursue their claim for full proprietary rights, they should be told that their only remedy is a suit against the State in the Civil Court."
3. On the night of 6/7 July, 1979, members of Sultanzai Tribe allegedly attacked the houses and property of the appellants of which a report was lodged. During the proceedings in that case, the appellants became aware of the order of Additional Commissioner, dated 10-8-1960. A Constitution Petition was, therefore, filed by the appellants in July, 1979 (amended in July 1980), the main ground of attack being as hereunder:-- "That the respondent No,3 passed the impugned order 'H' without notice to the petitioners and in their absence. The petitioners were thus condemned unheard. The order of the respondent as such is bad in law, void and without jurisdiction."
4. The High Court while dismissing the Constitution Petition on 14-6-1981 examined all aspects of the case including that of jurisdiction and negatived the claim on the following grounds:--
(i) As the order by the Commissioner has been passed when the jurisdiction of the High Court did not extend to the Tribal Area, therefore, it was not amenable to the writ jurisdiction. It may be argued that the petition has been filed in 1979, when the jurisdiction of the High Court extends to the Tribal Area, therefore, it is amenable to the writ jurisdiction of this Court. The fact remains that the order of the Commissioner was final and, therefore, it was a transaction passed and closed.
(ii) The Commissioner had passed his order on the report of the Tehsildar which was not taken into consideration by the Jirga. The order of the Commissioner has in no way prejudiced the case of the petitioners. The Commissioner has left open for the parties to prove their title in the Civil Court.
(iii) The Jirga had made a recommendation that Muhammad Khan be restrained from digging the Karez; and it is the substance of the decree. Muhammad Khan has not been allowed by the Commissioner to excavate the Karez. It is not the case of the petitioners that in the garb of the order of Commissioner, Muhammad Khan had started excavation of the Karez. Thus the decree to the extent whereby Muhammad Khan was restrained from the excavating the karez still subsists.
(iv) there was no suit for determination of the title of land between the parties, therefore, it cannot be urged that the FCR decree had conclusively determined the rights of the parties. In the circumstances of the case, the order of Commissioner is just and equitable.
(v) ... a suit against the State could not be filed in the FCR Court. As the interest of the State is involved in this matter, therefore, it should have been filed in the civil Court.
(vi) We are, therefore, of the opinion that though the petitioners are not heard by the Commissioner, but as the order of the Commissioner has not prejudiced the case of the petitioners, therefore, order of Commissioner cannot be set aside simply on the ground of violation of principle of natural justice.
5. Sardar Sami Hayat, Advocate, the learned counsel for the appellants has taken us through the various provisions having a constitutional bearing on the extension of the laws to areas under consideration, starting from the Government of India Act, 1935 and ending with the latest provisions in the Constitution. He has also heavily relied on the case-law on the subject namely, Pio Gul v. The State PLD 1960 SC 307, Sar Khan v. The State PLD 1967 SC 149, Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another PLD 1974 SC 109, Superintendent, Land Customs v. Zewar Khan PLD 1969 SC 285, Jamil Ahmad v. The State PLD 1969 SC 344, Hafiz Umar Gul and another v. Government of Pakistan through Secretary, Tribal Areas, Rawalpindi and 4 others PLD 1973 SC 544 and finally Ch. Manzoor Elahi v. Federation of Pakistan etc PLD 1975 SC 66.
' The upshot of his submission by reference to this is that if the proceedings had been taken or carried on substantially in the settled areas and the grievance had arisen therein, then notwithstanding the non-extension of the laws and the writ jurisdiction to the excluded areas, the High Court would have jurisdiction to deal with the matter. Another argument on the constitutional plane advanced by the learned counsel for the appellants is that what qualified as 'existing law' under the Constitution of 1962 (Article 223) continued to be a good law and required no extension under Article 223.
' In the case in hand, it is contended that the Additional Commissioner/Commissioner FCR, whose order was impugned and who committed a jurisdictional error in entertaining and deciding the revision petition had taken up the proceedings and concluded it in the settled area where the jurisdiction of the High Court existed and was not questionable. According to the learned counsel, the revision petition having been decided without notice to the appellants, should had been successful, in the lower forum. The order of the Additional Commissioner was a nullity, void ab initio and could not be allowed to stand on any equitable ground whatsoever.
6. The Deputy-Attorney General on notice and the Advocate-General Balochistan have in resisting this appeal defended the order of the Balochistan High Court both on the constitutional as well as on merits.
7. By section 2(1)(iv) of the Establishment of West Pakistan Act, 1955, the territories of West Pakistan were to comprise amongst others "the Tribal Areas of Balochistan, the Punjab and the North-West Frontier and the States of Amb, Chitral, Dir and Swat" (referred to as the 'specified territories'.
Section 7 of the same Act, while constituting the High Courts provided that the High Court shall exercise jurisdiction in relation to the whole of the Province of West Pakistan, and the powers and authority exercisable by the High Court in Lahore and the Judges thereof, immediately before the date on which the order under this subsection comes into force, shall be exercisable by the High Court of West Pakistan and the Judges thereof in the whole of West Pakistan, and section 223 of the Government of India Act, 1935, shall be construed accordingly.
8. ' Then followed the Establishment of West Pakistan (Amendment) Act, 1955 which was deemed to have come into force on and from the fourteenth day of October, 1955, i.e, from the very day that the Province of West Pakistan came into existence, and subsection (1) of section 7 of the Establishment of West Pakistan Act, 1955 was amended so as to exclude from the jurisdiction of the High Court the special areas.
' The Presidential Order No,11 of 1961 was termed as Special Areas (Restoration of Jurisdiction) Order, 1961. Clause 2 of Article 2 provided in the following manner:- "The High Court of West Pakistan shall exercise in relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercisable by the High Court of West Pakistan on the 14th day of October 1955, if sub-clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd of March, 1956, had not been enacted."
9. This provision indeed restored the jurisdiction of the High Court in the special areas. Nevertheless, its jurisdiction was again taken away by the Constitution of 1962. The contention of the learned counsel for the appellants that as existing law under Article 225 of the 1962 Constitution the Presidential Order No,11 of 1961 continued to be operative and holds good only to the extent as approved in Manzoor Ilahi's case PLD 1975 SC 66. When the Fundamental Rights were introduced in the Constitution by Act I of 1964 Constitution (First Amendment) Act, 1963 clause (5) was added in Article 223 of the Constitution of 1962 on 27th January, 1964, as hereunder:-- "Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall, unless the Central Legislature by. Law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area."
The Act II of 1964 Tribal Areas (Restoration of Jurisdiction) Act, 1964 enforced on 10th of April, 1964, made the following provision with regard to restoration of jurisdiction:--
2. Restoration of jurisdiction of the Supreme Court and the High Court.---The Supreme Court and the High Court of West Pakistan shall exercise in relation to the Tribal Areas of the Quetta Division the same jurisdiction as was exercisable by them in relation to those areas before the commencement of the Constitution (First Amendment) Act, 1963 (I of 1964).
3. Extension of limitation.---Notwithstanding anything contained in any other law for the time being in force, if a period of limitation had begun to run from before the commencement of the Constitution (First Amendment) Act, 1963 (I of 1964), in respect of any matter concerning which the jurisdiction of the Supreme Court and the High Court of West Pakistan is created or restored by this Act then in computing such period of limitation the period between the tenth day of January, 1964, and the date of the coming into force of this Act shall be excluded: ' Provided that no period of such limitation shall expire on a day earlier than the thirtieth day from such date."
10. In this background of the constitutional instruments, it cannot be said that at the relevant time in 1960. When the jurisdiction was invoked and the impugned order passed by the Additional Commissioner, there was at all constitutional jurisdiction available to the Balochistan High Court in respect of the territories where the land was situate.
11. As regards the contention that the Additional Commissioner while passing the order was located in settled area where the jurisdiction of the High Court extended, the matter stands concluded by one of the later decisions of the Supreme Court Muhammad Sadiq and others v. Government of Pakistan and others 1981 SCMR 1022 which provides that the jurisdiction of the Supreme Court and High Court stands excluded in only those matters which are exclusively concerned with the Tribal Areas, and that the ouster clause cannot be interpreted so as to exclude the jurisdiction of a superior Court in matters in which any part of the cause of action accrues, or any effective action or step is taken or performed in, or at, a place outside the tribal area, affecting the life, liberty or property and the jurisdiction of the High Court remains. In this case, the subject-matter of the dispute was immovable property and rights therein. These were located in the tribal area. The authorities which dealt with the matter were empowered to deal with such matters as pertaining to tribal areas. In the circumstances, the substantial cause of action and the subject-matter of dispute would be located in the tribal area and not in the settled area merely because such an order was passed.
12. What is important for the purposes of this appeal is the view taken by the High Court by going deep into the controversy and coming to the conclusion that on equitable grounds no prejudice has been caused and the decision is otherwise proper and fair.
' At one stage, when the presence of Board of Revenue was sought it informed the High Court in writing that it was not interested as it was not formally impleaded a party and its interest was not involved in the proceedings. On the basis of this document it is contended that had the Government any interest in the land as was held by the Additional Commissioner in the impugned order, the departmental representation would not have been ensured to protect and defend that order of the Additional Commissioner and to advance its case on merits. Having not been formally impleaded in the writ petition and no direct challenge to its authority having been made in spite of the Revenue Record showing it to be waste land, such a reply could not have the effect which the learned counsel wants to infer.
13. In view of the discussion above, there is no merit in the appeal which is dismissed with no order as to costs.