1. ' AMIRUL MULK MENGAL, J.-Facts arising out of this Constitutional petition, if put concisely, reveal that petitioners belong to Shakarzai section of Jamaldini Tribe of Nushki, whereas the unofficial respondents arc Mandai by caste which is also a section of Jamaldini Tribe. The Shakarzai section owns and possesses land, inter alia, in the area known Dak of Nushki Tehsil. During the settlement operation held in the area towards 1967 Shakarzais were entered as owners of the land, to the extent of 1/7th share. This has never been challenged either in Revenue Court or in any Civil Court so far.
2. ' In 1973 the Government abolished Sardari tax known as Shishak. It is contended that respondents, by taking undue benefit of Shishak Ordinance, tried to grab the property of the petitioners. They moved a miscellaneous application on 26-6-1975 before the then Chief Minister of Balochistan in which it was stated that Sardar of Jamaldini receives 1/7th of the lands as Sardari tax, therefore, he may be ordered not to receive the same and heavy sureties may be obtained from him. They in fact wanted distribution of 1/7th of the lands.
3. ' On such miscellaneous application in which no proper parties were mentioned except Sardar of Jamaldini (and not present petitioners), the then Chief Minister passed an order on 1-7-1975 as under: ' On the basis of said miscellaneous application series of proceedings were started. In the first instance the Deputy Commissioner in usual routine manner marked the case to Tehsildar for inquiry and report. Thereafter on 25-7-1975 at the proposal of Tehsildar Nushki he took cognizance of the matter under Civil Law (Special Provisions) Ordinance I of 1968 (hereinafter referred to as the "Ordinance I of 1968") and after framing issues referred the matter to a Tribunal. It is surprising to note that no tribunal was constituted at the initial stage which were subsequently appointed changed and re-appointed.
4. ' It is worthmentioning to note that prior to these proceedings or perhaps simulataneously, proceedings under Criminal Law for maintaining peace between the parties were drawn. Being aggreived of one of such orders, a revision petition was preferred before the Sessions Judge for quashment of proceedings, but the same was dismissed on the ground, that no action in fact, had been taken under section 145, Cr.P.C. It is further revealed that action was also taken under sections 17/18 of Criminal Law (Special Provisions) Ordinance II of 1968, by the Assistant Political Agent Nushki. Some of the petitioners approached Commissioner Quetta Division who vide his order dated 24-8-1976 ordered that the Assistant Political Agent/Assistant Commissioner Nushki had no lawful authority to pass an order keeping the produce of 1/7th share in Mianjikhana under Ordinance I of 1968. He further observed as under:- "I have observed that the record of the two cases received from the lower Court, one pertaining to Civil case and the other to Criminal one, have not been maintained in a proper manner. The Presiding Officer should see that the record is maintained properly and the cases are proceeded with in accordance with law."
5. ' However, the respondents were insisting for keeping produce in Mianjikhana. This matter thus remained pending before different Courts; some times orders were passed by Deputy Commissioner while other times it was Tehsildar Nushki or Assistant Political Agent Nushki who used to pass orders on the same. It may be noted that Shakarzai section of Jamaldini Tribe was in fact not made a party in the original application nor any permission was sought to make them a party at all. Originally the application was filed against Sardar of Jamaldini Tribe but at no stage of proceedings Shakarzias sub-tribe was made a party in a formal manner. Despite that the Deputy Commissioner, Assistant Political Agent and Tchsildar Nushki used to send notices to noteables and also to other persons of said sub-tribe. The Assistant Political Agent also took cognizance, constituted another Tribunal and framed issues regarding the crops to be kept in Mianjikhana.
6. ' However, matter remained pending until when the District Magistrate/Deputy Commissioner Chagai in a detailed order dated 30-10-1982 observed that Shakarzai Tribe has been recorded as owner of the property in dispute and no question arises to declare their ancestral property as Shishak. As far as Sardar of Jamaldini was concerned, he voluntarily gave his share to his tribesmen. He, therefore, ordered that the respondents should file a proper suit and affix court-fee if they want -to establish their title to the property. He passed a comprehensive order discussing the Shishak Act and observed that Shakarzais claim that they are owners since centuries. None raised.
7. Any objection to their rights. Now if any body if aggrieved, he should file a proper suit. Proper written statement be taken etc. From respondents. An appeal was filed before the Additional Commissioner, Quetta Division who in a detailed order dismissed the appeal on 10-3-1987.
8. ' Be that as it may, a revision petition was filed before Member, Board of Revenue. Alongwith the same an application was filed to maintain status quo and the order of Mianjikhana of the produce of the land in dispute. It may be worthmentioning that at some stage Mianjikhana order was passed and the produce of lands in dispute used to be kept in Mianjikhana. Ultimately on 31st July, 1990 the learned Member, Board of Revenue while observing that entire proceedings have been done illegally, remanded the case to the Deputy Commissioner for constituting a tribunal and obtaining a proper award and determination of dispute under Ordinance I of 1968.
9. ' The petitioners challenged these proceedings when the matter was still sub judice before Member, Board of Revenue, but ultimately an amended petition was also filed praying that whole proceedings were unlawfully initiated and that the order of Member, Board of Revenue directing Deputy Commissioner to constitute a tribunal and refer the case to the Tribunal, may be set aside.
10. A further prayer was sought with the effect that since no proceedings were conducted under Ordinance I of 1968 and that otherwise suit was time-barred on the face of it, therefore, all ancillary orders of Mianjikhana etc. May be declared as unlawful, ' We have heard Mr. Tahir Muhammad Khan on behalf of petitioners and Raja M. Afsar for official as well as private respondents.
11. ' Mr. Tahir Muhammad Khan in support of the petition urged that in fact application on the basis of which all these proceedings started did not disclose a cause of action at least to the extent of present petitioners, therefore, cognizance of the same under section 3 of Ordinance I of 1968 was totally without lawful authority. Another limb of the argument in this regard was that in fact there were no parties mentioned in the application nor any list of parties including entire Shakarzai Tribe was ever made. Original application was against Sardar of jamaldini who gave voluntarily his share but despite that proceedings continued against petitioners who belong to Shakarzai section of Jamaldini Tribe and have admittedly been recorded as owners of 1/7th share of property in Dak area. By referring the matter to tribunal in fact the Deputy Commissioner acted unlawfully because he failed to determine question of limitation and cause of action. Learned counsel challenged the authority of Deputy Commissioner who passed Mianjikhana order on 16-8-1975 which was set aside by Commissioner Quetta Division vide order dated 24-8-1976. But since M.B.R. Ordered status quo and maintaining Mianjikhana, therefore, crops remained in Mianjikhana. It was also urged that the only basis of the entire claim was that Government abolished Shishak i,e, Sardari tax, through Abolition of Shishak Ordinance, 1973 but all of Shakarzai sections are not admittedly Sardars, therefore, their property could not be declared as Sardari tax.
12. ' In reply to the said contentions Raja M. Afsar submitted that M.B.R. Has remanded the matter to be tried under Ordinance I of 1968, therefore, same is unexceptionable and petition is not maintainable. He also challenged maintainability of petition on the ground that originally it challenged only Mianjikhana order and the proceedings conducted up to appellate Court. He pointed out that Sardar accepted the claim of private respondents.
13. ' We now embark upon to consider and determine the points so raised. Since the very basis of the claim of private respondents was that the Government has been pleased to abolish Sardari tax (Shishak) and Sardar of the applicants was still receiving 1/7th share of their property as tax, therefore, it may be declared that 1/7th produce as well as the lands situated in Dak (Mahal Dashtak, Mahal Gazzak, Mahal Kallagi, Mahal Kharana etc.) be handed over to them. There was no claim against any of the petitioners, except Sardar Jamaldini (petitioner No, 21 Sardar Asir Sher Jan is the son of late Sardar Asadullah Khan who was the Sardar at the relevant time).
14. ' Before proceeding further, we would like to briefly outline the laws relevant for the purpose.
15. ' In the year 1973 an Ordinance namely Abolition of Shishak Ordinance, 1973 (Ordinance 111 of 1973) was promulgated. In section (2) (1) of the Ordinance Shishak was defined as under:-- 'Shishak' means that portion of the total produce of a crop which is paid to a Sardar under the local custom or usage as Sardari tax."
16. ' Subsequently application of said Ordinance was extended to Provincially Administered Tribal Areas in the Province of Balochistan on 22nd of March, 1973. This Ordinance was, however, made an Act as Abolition of Shishak Act, 1973 and was published in Extraordinary Gazette dated 10th of October, 1973. The legislature being conscious of the fact that no person should be allowed to make undue claim over the properties of others in the guise of Shishak Ordinance amended the definition of Shishak in the Act. Section 2 (1) of Shishak Act reads:-- "Shishak" means that portion of the total produce of a crop which is paid to a Sardar under the local custom or usage as Sardari tax, but does not include proprietary rights, also known as Haq-e- Malikana (Batai), and ' In the light of above legal position we will now consider the miscellaneous application filed by respondents before the then Chief Minister in order to determine whether at all there was any cause accrued to the respondents against the petitioners for filing the said application. In this regard definition of Shishak is very pertinent which means that portion of the total produce of a crop which is paid to a Sardar under the local custom or usage as Sardari tax but does not include proprietary rights also known as Haq-e-Malikana (Batai). Thus it is clear that in order to declare a portion of crop as Shishak, it must be proved that portion of a produce, is received as a Sardari tax.
17. There is no mention under this Act as to who will declare the prescribed produce as Sardari tax. Be that as it may, Shishak does not include proprietary rights or Haq-e-Malikana of a lawful owner.
18. Similarly Sardar has been defined as a Sardar under custom and usage which also include Khan, Jagirdar, Malik or a Motabir. Thus any Khan, Jagirdar, Malik or a Motabir who receives certain portion of a crop as Sardari tax can not do so after passing of this Act. It has clearly excluded Haq- e-Malikana being received by lawful owners to be Shishak.
19. ' Seen in the light of this legal proposition we have to examine the prayer made by the private respondents who filed application to the then Chief Minister Balochistan in respect of 1/7th of lands situated at Dak. They have never stated that Shishak is being received by any of Shakarzais except Sardar Jamaldini. The prayer is exactly in the following words:-- {{URDU TEXT}} Thus in fact respondents never filed a suit against present petitioners except petitioner No,21 who is son of late Sardar Asadullah Khan Jamaldini that he is receiving 1/7th produce of the lands.
20. Proceedings against petitioners under this Act without any claim by original applicants was not warranted. We have perused the available record attached with the petition as well as counter- affidavit and we found that at no stage of proceedings in original trial, present petitioners were made a party.
21. ' Admitted position on record is that as per Revenue Record all petitioners have been recorded as owners of the land with further observations that 1/7th of the entire lands shall be distributed amongst Shakarzai section. The remaining lands are distributed on Mard Bakhsh basis amongst all the male members; meaning thereby that every male member shall own land. This is so entered in Wajib-ul-arz. Applicants wanted 1/7th share of lands to be distributed amongst them under the provisions of Shishak Act, 1973. They wanted a declaration by the then Chief Minister or the Government. Therefore, they did not file a proper suit or a proper application under section 3 of Ordinance I of 1968 before the Deputy Commissioner. Prima facie their claim was that 1/7th of the entire lands situated in Dak belonging to Sardar Jamaldini be distributed amongst the whole Jamaldini Tribe and should not be given to Sardar Jamaldini. This declaration was sought under Shishak Act. However, there was no claim in their application that lands belonging to Shakarzais Tribe (present petitioners) be declared as Shishak and distributed amongst them. They could conveniently make such a claim before a competent Civil Court or in the alternative before the Deputy Commissioner under Ordinance I of 1968. But they have filed a suit neither before a competent Civil Court nor before the Deputy Commissioner under Ordinance T of 1968 against petitioners. What they in fact wanted was a declaration that 1/7th share of the lands belonging to Sardar be declared as Shishak and distributed amongst them. The Deputy Commissioner instead of proceeding to determine this issue proceeded initially under Ordinance I of 1968 but subsequently being confronted with complicated situation, confined himself only to order that the produce of the said lands be kept in Mianjikhana. Some proceedings were started under section 145, Cr.P.C. But it was not specifically so mentioned. Orders reveal that peace securities were also obtained by Assistant Political Agent.
22. ' Being faced with such a situation, and after exhausting all measures for a compromise or reconciliation, the Deputy Commissioner in his order dated 23-3-1987 observed as under:-- " It is a fact that 1/7th share of property is totally different from `Shishak' which is a Sardari tax. This 1/7th is the property of Shakarzai section, and has been so entered in Record-of-Rights Sardar Asadullah Khan has acceded to the claim of applicants and has waived his right to said property...But Sardar cannot give property of other Shakarzai who have got 102 of 'Mud Bakhsh' shares " After making these observations, however, the learned Deputy Commissioner, who had in fact, apprehended the true nature of the matter correctly analysed the legal as well as factual aspects observed that the plaintiffs should affix court-fee, which in fact was not required under Ordinance I. He observed:-- {{URDU TEXT}} ' Appeal against the said order was also dismissed with the following observations:-- ' In such circumstances the parties went before Member, Board of Revenue who initially passed an order on 9-4-1987 which reads as under:-- "There is an application for status quo during the pendency of this petition. Notice of this application may also be given to other side. However, status quo in the meanwhile till disposal of this petition. Old Mianjikhana also to be maintained. Matter to come up on 2-7-1987."
23. ' But subsequently vide impugned judgment the case was remanded to be tried under Ordinance I of 1968.
24. ' From the manner in which such proceedings were conducted, it appears that in fact the Deputy Commissioner initially could not apprehend in true legal perspective the nature of claim of the parties or import of laws in this respect. The applicants who filed original application were aggrieved only regarding the share of lands (1/7th belonging to Sardar of Jamaldini). But when Sardar raised no objection regarding his own personal share, the Deputy Commissioner by issuing notices to Shakarzai section of Jamaldini Tribe as a whole in fact misexercised his jurisdiction which resulted in confusion throughout the proceedings. Raja M. Afsar, learned counsel for respondents utterly failed to point out whether there was any claim against the property of Shakarzai section by the applicants in original application or subsequent thereto. Shakarzai section felt aggrieved and filed appeal only when their share of the crops was ordered to be kept in Mianjikhana.
25. ' We find sufficient force in the contentions raised by Mr. Tahir Muhammad Khan in the circumstances of present case, that in fact no suit was filed or was pending under Ordinance I of 1968 at least against Shakarzai section of Jamaldini Tribe. In order to further appreciate the point we may advert to the provisions of Ordinance I of 1968. Section 3 (1) of the said Ordinance reads as under:-- "3. Certain disputes to be adjudicated upon under this Ordinance.--- (1) Notwithstanding anything contained in any other law for the time being in force all disputes of a civil nature, other than any dispute to be determined in accordance with the provisions of the Muslim Family Laws Ordinance (VIII of 1961), shall be adjudicated upon in accordance with the provisions of this Ordinance: ' Provided that the provisions of this Ordinance shall not apply to a dispute arising in or relating to any area specified in the Second Schedule, unless all the parties to such dispute make an application in writing to the Deputy Commissioner that such dispute be adjudicated upon in accordance with this Ordinance."
26. ' Similarly section 4 of Ordinance I of 1968 would be relevant for the purpose which is reproduced:-- "4. Constitution of and reference of dispute to a Tribunal.-- (1) Where any party to a dispute, which is required to be adjudicated upon in accordance with the provisions of this Ordinance, relating to any area specified in the Second Schedule, makes, or all parties to such dispute arising in or relating to any area specified in the Second Schedule, make an application in writing to the Deputy Commissioner, for the adjudication or settlement of such dispute, the Deputy Commissioner shall constitute a Tribunal in accordance with section 5, and by order in writing refer the dispute to the Tribunal for a finding on such matters or issues as may be specified in the order.
(2) A dispute shall not be referred to a Tribunal if a civil suit in respect thereof would be barred by the provisions of the Limitation Act, 1908 (IX of 1908).
27. (3)
28. (a)
(b) ......................
29. ' Bare perusal of the aforesaid provisions of the Ordinance indicates that such application shall be moved before Deputy Commissioner. As per section 4 (2) a dispute shall not be relerred to a Tribunal if a civil suit in respect thereof would be barred by the provisions of Limitation Act, 1908. In the instant case the Deputy Commissioner made a reference on the suggestion of Tehsildar without applying his mind to this aspect of the matter. So much so that even no written statement was obtained from the present petitioners. In fact the tribunal never conducted any proceedings under Ordinance I of 1968.
30. ' In these circumstances the parties were dragged into litigation since 1975.
31. ' Raja M. Afsar submitted that since petitioners were impleaded as party at the appellate or revisional stage, therefore, the remand order passed by M.B.R. Is unexceptionable and the petitioners' name shall be included in the application after proceedings are conducted by the Tribunal. Learned counsel, however, lost sight of the fact that Government of Balochistan was plesed to withdraw the provisions of Ordinance I of 1968 vide notification dated 23rd June, 1988 and the said Ordinance is no more applicable in the areas specified in the Schedule. Instead Civil Courts Ordinance, 1962 was made applicable in all these areas. However, there is a saving clause in the said notification laying down that notification shall not affect any proceedings by or before any Court or any authority under the provisions of said Ordinance. There is no doubt that the original application was filed before the then Chief Minister and not before the Deputy Commissioner under the provisions of Ordinance I of 1968. However, the same was referred by the Chief Minister to the Deputy Commissioner for taking action in accordance with law. Deputy Commissioner referred the same to a tribunal under Ordinance I of 1968. But in this application there is no claim against the present petitioners. It was only Sardar Jamaldini against whom such application has been made. It has already been stated in the preceding paras. That Sardar Jamaldini acceded to the claim of the private respondents to the extent of his personal share. Thus it cannot be said that after when Sardar Jamaldini gave his own personal share to the original applicants, there remained any lis to be further adjudicated upon. Since the tribunal did not conduct any proceedings under Ordinance except recording one or two statements of Sardar Jamaldini, therefore, in fact no proceedings were deemed pending after such admission. The contention raised by Raja M. Afsar that petitioners shall now be made party has no force at all because the provisions of the Ordinance have already been withdrawn and there was no cause of action regarding the share of the petitioners. Thus if the private respondents feel aggrieved, the only course left to them is to file a civil suit in a competent Civil Court for declaration of their rights. The order passed by M.B.R. Remanding the matter to the Deputy Commissioner is in fact an exercise in futility because it will only be confined to the parties as mentioned in the original application, i,e, share of Sardar Jamaldini who accepted the claim of applicants to the extent of his own share. There is yet another aspect, which if taken into consideration, would help resolving the dispute. It is this: that it is not the landed property or Haq-e- Malikana, but only Sardari tax, which can be made subject-matter of dispute of like nature. The landed property would not constitute subject-matter under Shishak Act; but only that portion of the crop which is received as Sardari tax, by a Sardar. No legitimate claim therefore, can be made regarding the share of parties in landed property notwithstanding its crops. Here in the application, the subject-matter relates 1/7th of the total lands of Dak belonging to Jamaldini Tribe, which prima facie cannot be determined under the provisions of Shishak Ordinance. It was C therefore rightly decided by D.C., Chagai that property recorded in record of-rights cannot be declared as Shishak.
32. Keeping all these facts in view we have come to the conclusion that the order passed by Deputy Commissioner dated 30-10-1982 and the appellate order of the Commissioner have been passed with lawful authority. He also fully grasped the nature of dispute by dismissing the appeal. However, learned M.B.R. Failed to properly appreciate the nature of the claim and relevant provisions of law.
33. He in a stereotyped manner held that since a tribunal was constituted, therefore, the proceedings must be deemed to have been conducted under Ordinance I of 1968. Although he simultaneously held that entire proceedings have been conducted illegally. He, however, failed to appreciate that there was no legal justification at all to refer the matter to be tried under Ordinance I of 1968. He did not properly appreciate that in fact no application was moved under Ordinance I of 1968 by the applicants. An application was made to Chief Minister and not to Deputy Commissioner. It was against only Sardar Jamaldini and not Shakarzai section. No claim was at all made that Shakarzai section as a whole arc Sardars, or receiving Sardari tax. There was no cause of action particularly against Shakarzais. After when Sardar voluntarily admitted their claim, no lis remained for adjudication. No written statement was obtained by petitioners. In fact there was no cause of action because dispute related to property and not its share being received as Sardari tax. The order of the Member, Board of Revenue is, therefore, declared as having been passed without lawful authority and the same is thus of no legal effect. As for the produce which has been ordered to be kept in Mianjikhana, the same shall be released to the petitioners to the extent of their share except the personal share of Sardar Jamaldini. However, as observed by Commissioner, the plaintiffs may file a proper civil suit, if they so choose.
34. ' The petition is thus accepted and order of M.B.R. Is set aside. However, the parties are left to bear their own costs.