' SAAD SAOOD JAN, J.--- These are eleven appeals by special leave from the judgments of the Peshawar High Court whereby the Constitution petitions filed by the appellants to call in question the orders made by the Tribunal Land Disputes (Dir, Swat and Chitral), were dismissed. These appeals have been heard together as common questions of law have been raised in them.
2. By Regulation I of 1969, also known as Dir, Chitral and Swat (Administration) Regulation, the Rulers of the former States of Dir, Chitral and Swat ceased to exercise any powers or perform functions relating to the administration of these States; instead the powers and functions of the Rulers. Were to be henceforth exercised or performed by such officer, person or authority as the Provincial Government might appoint or empower in that behalf. The appellants in the appeals before us were in occupation of lands in different parts of Chitral. There were serious disputes between them and the contesting respondents, which included the former Ruler of Chitral and members of his family, as to who were the owners of the lands under the occupation of the appellants. 'To inquire into these disputes the Provincial Government constituted a Commission by a notification bearing No,10/5- HSLG-II(TA) issued on 13-11-1971. The Commission was known as Dir and Swat Land Disputes Inquiry Commission, The contesting respondents made applications to the Commission for the resolution of the disputes.. The main issue in all these applications related to the ownership of the lands under the occupation of the appellants. The case of the contesting respondents was that they were the owners thereof and the appellants were their tenants therein on payment of Qalang. The Commission accepted their claim and declared them to be the owners of the lands and the appellants as their tenants. The appellants challenged the findings of the Commission in appeals before the Additional Deputy Commissioner, Chitral. Their appeals were dismissed. They filed further appeals before the Provincial Government. A Joint Secretary in the Provincial Government dismissed the appeals. The appellants then filed revision petitions before the Federal Land Commission. Some of the revision petitions were heard by the Chairman (Sh. Muhammad Rashid) and the others.. By a Member (Mr. Abdul Qayyum) of the Commission. All the revision petitions were accepted and the appellants were declared owners of the lands held by them. The contesting respondents in Civil Appeal No,28-P filed a Constitutional petition in the High Court to call in question the legality of the order of the Federal Land Commission. It was dismissed in limine.
3. On 10-9-1980 the President made an order known as the President's Order No,12 of 1980. Under Article 6 of the order the Federal Government or a person authorised by it in this regard was empowered to review orders of the Federal Land Commission. In exercise of this power the Federal Government set up a one-man Tribunal. Mr. Qaiser Khan, a former Judge of this Court was appointed as the Chairman of the Tribunal. The contesting respondents filed review petitions against the orders of the Federal Land Commission. The Tribunal accepted the review petitions, set aside the order of the Federal Land Commission and declared the contesting respondents to be the owners of the lands in dispute. The appellants filed Constitutional petitions in the High Court to call in question the legality of the orders of the Tribunal. These were dismissed.
4. Leave to appeal was granted to the appellants to consider the following questions:---
(a) Whether limitation of 90 days provided by the Settlement of Disputes. Of Immovable Property (Chitral) Order, 1980 (President's Order No,12 of 1980) was open to review without showing grounds for condonation of delay.
(b) Whether the learned Chairman, Tribunal Land Disputes, Chitral, could entertain such a time- barred review petition.
(c) Whether the question' of implementation of the order of the Federal Land Commission was not involved as the petitioners are in possession; and no payment of any kind of rent, in any shape; has ever been paid by them to the respondents, and therefore, the decision of the learned High Court proceeded on incorrect assessm ent of facts.
(d) Whether QALANG is rent and not payable to the State has already been decided in favour of the petitioners, and, therefore, no interference was called for.
5. As mentioned earlier, Article 6 of President's Order No,12 of 1980 permitted review of the orders of the Federal Land Commission. This Article was amended by Article 3 of President's Order No,11 of 1981. After amendment the said Article read as follows: Review.--- (1) The Federal Government or any person authorised by it in this behalf may at any time, on its or his own motion, review any order, passed by itself or any such person under section 6 of the Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Regulation III of 1974), as it existed immediately before the fifteenth day of March, 1978, hereinafter referred to as the said Regulation, and on so reviewing modify, reverse or confirm the same: ' Provided that no review shall be permitted in cases where an order passed under section 6 of the said Regulation has been fully implemented.
(2) Any person aggrieved by an order passed under section 6 of the said Regulation may if the order is unimplemented or the date of commencement of this Order, apply for a review of the order to the Federal Government or any person authorised by it in this behalf and the Federal Government or such person may modify, reverse or confirm the same: ' Provided that---
(a) Any application for review of an order shall not be entertained Unless it is made within ninety days of the making of this order or unless the applicant satisfies the Federal Government or the person authorised by it that he had sufficient cause for not making the application within that period; and
(b) The order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order.
(3) While deciding any matter under this Article, the Federal Government or, as the case may be, the person authorised by it shall have till the powers of an appellate Court under the Code of Civil Procedure, 1908 (Act V of 1908).
(4) If, while reviewing an order under this Article the Federal Government or the person authorised by it remands a case to the Provincial Government or an officer authorised by the Provincial Government; the same shall be deemed to be a dispute to be decided under Article 4 or Article 5, as the case may be."
' A perusal of this Article will show that the power of review could be exercised in two manners, namely, by the Reviewing Authority whether it was the Federal Government itself or person authorised by it, on its own motion, and the second, on the application of an aggrieved person.
There was no time limit so far as exercise of the power of suo motu review was concerned. On the other hand, the aggrieved person seeking exercise of the said power was required to make an application within ninety days of coming into force of the order. The order came into force on 10-9- 1980. Thus, the last date for filing review application by an aggrieved person expired on 9-12-1980..
However, there was power in the Reviewing Authority to extend the time if it was satisfied that the applicant had shown sufficient cause for not making the application within the specified period.
6. Although the President's Order came into force on 10-9-1980, yet the Tribunal was not constituted till 1-11-1980. Even then the Tribunal did not have the facility to entertain the applications or the ministerial staff to process them. On 8-12-1980 the Chairman made a general order extending the time for filing review applications. The relevant portion of his order reads as follows:- "According to all the orders the period of limitation for filing review petitions against the orders of the Federal Land Commission is 90 days from the date of publication of the orders which is 10-9- 1980. The period of limitation expired on 9-12-1980, but since the area to which the orders apply is far-flung and the people most illiterate very few review petitions have been received till today. I, therefore, in the exercise of my powers under section 7(2)(a) of Order 11 of 1980, 6(2)(a) of Order 12 of 1980, 6-A(2)(a) and 5-C(2)(a) of Order 13 of 1980 extend the period of limitation and shall entertain review petitions within a period of 90 days from 1-11-1980 the date on which I took over as an authorised person. This period shall expire on 29-1-1981."
7. It is not in dispute that the contesting respondents in. Civil Appeals other than those bearing No,338 and 28-P filed the review applications after 9-12-1980 but within the last date prescribed by the Chairman,. That is, 29-1-1981.
8. It is contended on behalf of the appellants in Civil Appeals Nos. 339 to 344 that as the review applications preferred by the contesting respondents therein were filed beyond the specified period of limitation, these ought to have been dismissed on that ground. It is also contended that even though the Tribunal was competent to condone the delay, but then it could not do so by a general order; for, it should have examined each case separately and then decided whether a case for condonation of delay had been made out. Apart from that, it is contended that the general order condoning the delay in all cases where review applications were filed after 9-12-1980 and before 29-1-1981 had the effect of nullifying the period of limitation fixed by the President's Order itself; the Tribunal was not competent to make an order of such nature which was tantamount to legislation.
9. It is to be noticed that the objection with regard to limitation is being taken for the first time before this Court for it was neither agitated before the Tribunal nor taken before the High Court.
This Court ordinarily does not entertain a plea of limitation if it has not been taken before the lower forum. See Ghulam Muhammad v. Abdul Qadir Khan PLD 1983 SC 68 and Irtiqa Rashid Hashmi v.
Water and Power Development Authority 1980 SCMR 722, Had the appellants raised the question of limitation before the Tribunal it would have no doubt considered it despite the general order which it had made on 8-12-1980. In that event the contesting respondents would have been in a position to show that they had sufficient cause for condonation of delay. However that may be, considering the reasons which led to the learned Tribunal to make the general order of 8-12-1980 it is unlikely that the respondents' prayer for condonation would have been turned down, particularly when the said order which was made before the expiry of the statutory period had led them to believe that they could file their review applications before 29-1-1981.
10. There is another aspect of the matter also. As noticed above, the Tribunal had the power to review the orders of the Federal Land Commission in exercise of its own suo motu jurisdiction. Thus, even if the review applications preferred by the contesting respondents were out of time, the learned Tribunal could still exercise its power of review. In this context reference is invited to the judgment of this Court in the case of Siraj Din v. Sultan PLD 1990 SC 95. In this case the application for review filed by a contesting party before the Land Commissioner was barred by time but then the Land Commissioner had the power suo motu to review the orders of the subordinate authorities. It was contended before this Court that the Land Commissioner could not exericse the suo motu power of review as the application of the aggrieved party was out of time. This contention was rejected by this Court with the following observations:-- "There is no doubt that the application for review by an interested party could be made within 20 days. But the Land Commissioner unquestionably had power to review his order without any time limit. He did so because the order sought to be reviewed was passed in disregard of the statutory provision and injustice was done to the appellant who had superior right and claim to the land qua the respondent. By doing so he had done justice between the parties. His order could not be termed as without lawful authority simply because the appellant had moved beyond time. He could dismiss the application and yet could act suo motu on the information laid before him. Once he had jurisdiction and passed order in exercise thereof, the High Court could interfere only if the order was without jurisdiction or in other words without lawful authority."
' The position is not different before us. We are, therefore, unable to sustain the objection of the appellants that the review applications which were filed after 9-12-1980 should have been dismissed simply on the ground of limitation.
11. From a perusal of Article 6, ibid, it will appear that the Reviewing Authority could not invoke its suo motu power of review in cases where the )rder sought to be reviewed had been fully implemented (see the proviso to Article 6(1)). Similarly an aggrieved person could also not approach the Reviewing Authority unless ,the order, complained against was still unimplemented on the day when the President's Order No,12 of 1980 came into force see Article 6(2). One of the contentions of the appellants in these appeals was that the orders of the Federal Land Commission had been fully implemented by the time the contesting respondents filed the review applications before the Tribunal. In support of this assertion it was stated that the appellants were already in possession of the lands in dispute; they had, according to the admissions of the contesting respondents themselves, stopped paying Qalang to them a long time before the disputes were taken to the Inquiry Commission. There were no revenue records maintained in Chitral which needed to be corrected to give effect to the orders of the Federal Land Commission. In the circumstances the declarations granted by the Federal Land Commission that they were owners of lands under their occupation became operative as soon as they were issued. As after the issuance of declarations nothing more was required to be done, these stood implemented within the meaning of Article 6.
Consequently, the Tribunal had no jurisdiction to review the orders of the Federal Land Commission.
In the alternate it was contended that the use of the words 'fully implemented' and `unimplemented' in clauses (1) and (2) of Article 6, indicated that the power of review created by the said Article was of an extremely limited nature and that it could be exercised only in those cases where the orders sought to be reviewed required implementation and had, on the day when the President's Order No,12 of 1980 came into force remained unimplemented.
12. It may be mentioned that this plea was also not taken by the appellants before the Tribunal. It was raised for the first time in the High Court which refused to entertain it on the ground that it entailed an inquiry into facts. In all fairness to the High. Court it cannot be said that the ground upon which it declined to entertain the plea was insubstantial. However, as the main burden of the argument addressed on behalf of the appellants was on this plea we proceed to examine it.
13. The contention whether the declarations granted by the Federal Land Commission stood on their own force implemented on issuance was examined by a Division Bench of the Peshawar High Court in Amir Shah v. Federal Government PLD 1986 Pesh. 195 and rejected with the following observations:-- "For ousting the jurisdiction of the Chairman Tribunal, it must be established on record that the decision given in the particular case was given effect to and enforced in a manner and in accordance with the machinery provided for in the Regulation itself. The provision ousting the jurisdiction of a special Tribunal providing for the redress of a person aggrieved must be strictly construed. In these principles, therefore, the ouster clause will come into play and would be attracted to those cases alone in which the decisions requiring implementation have been given and those orders have been enforced in accordance with the provision of paragraph 4 of the Regulation. Hence the first category of cases in which dispute of declaratory nature was prayed and decision given thereon by no stretch of imagination can be said that the orders stood fully implemented when passed. The very word `fully implemented' is suggestive of something done in pursuance of the order passed. The objection of the learned counsel that the order being declaratory in character would be deemed to have been fully implemented ousted the jurisdiction of the learned Chairman, Tribunal is misconceived."
14. The word 'implement' is not a technical one. The learned counsel for the appellants has referred to the ordinary dictionaries to discover its meaning. According to Chambers Twentieth Century Dictionary the word 'implement' means 'to give effect to; to fulfil or perform'. It will be noticed that in the appeals before us it were the contesting respondents who had approached the Inquiry Commission to seek reliefs which could only be granted to them if they. Were found to be the owners of the land in the occupation of the appellants. Their assertions with regard to ownership were upheld by all the authorities till the Federal Land Commission recorded a finding to the contrary. In the circumstances there was no question of implementation of the orders of the Commission. Apart from that an order affecting the parties can be enforced, fulfilled or performed in two manners; either by an act of the parties themselves or through the intervention of an outside agency. There is no evidence that the contesting respondents had agreed to be voluntarily bound by the orders of the Federal Land Commission. On the other hand it appears that the Federal Government itself was not sure about the propriety of the orders made by the Federal Land Commission, with the result that on 20-11-1976 the Commissioner, Malakand Agency, sent a wireless message to the Deputy Commissioner, Chitral, for suspension of execution of all Federal Land Commission's decisions immediately until further orders. The direction given in this message was never withdrawn till the President's Order No,12 of 1980 came into force. As soon as the order was promulgated, the contesting respondents approached the Tribunal to review the orders of the Federal Land Commission. It cannot, therfore, be said that they had acquiesced in the orders, of the Federal Land Commission. Admittedly, no outside agency intervened to enforce the order of the Federal Land Commission. In the circumstances it is difficult to hold that the orders of the Federal Land Commission holding the appellant to be the owners of the land in their. Possession stood implemented before the contesting respondents approached the Tribunal for relief.
' As regards the contention that the power of review was limited to only such orders which though requiring implementation had yet remained unimplemented, it is clearly without any merit. We can discover nothing in Article 6 which would support the contention which had the effect of narrowing down the powers of the Reviewing Authority. On the other hand, a fair reading of the said Article supports the view of the Peshawar High Court in the case of Amir Shah, ibid, that the limitation placed on the power of the Reviewing F Authority was only in respect of such orders which required implementation but had not yet been given effect to when the President's Order came into force.
16. It was also contended on behalf of the appellants that the power of review could only be exercised in cases where some error of law had crept in the orders sought to be reviewed or the findings of the Federal Land Commission were based on a misreading of the record or did not take into account material evidence; in the absence of any such defect the learned Tribunal could not interfere with an order of the Commission. We find little merit in this contention. Article 6(1) did not specify the grounds upon which alone a Reviewing Authority could reverse or modify an earlier order. On the other hand, a perusal of clause (3) of the said Article would indicate that it had all the powers of a Court of appeal. In the circumstances we are unable to spell out any limitations on its competence as suggested by the learned counsel.
17. The Federal Land Commission consisted of a Chairman and Member The review applications which came before it were to be disposed of either by the Chairman or the Member sitting singly. In the case of Ashiq Muhammad Khan v. Chairman, Federal Land Commission PLD 1977 Lah. 461 a learned Single Judge held that while exercising their revisional power the Chairman and the Member were to act jointly. Although this view did not subsequently find favour with this Court (see Muhammad Shah Khan v. Federal Land Commission 1991 SCMR 732, nevertheless the President promulgated an Ordinance, No,XXII of 1981, validating the orders which had already been passed by the Chairman or the Member of the Federal Land Commission while sitting singly. Section 2 of the Ordinance provided:- "Notwithstanding any order or decision of any Court, any order passed by the Chairman or a Member of the Federal Land Commission at any time before the commencement of this Ordinance and purporting to be in exercise of the authority conferred on the Chairman and Members of the Commission by an order of the Federal Government under the Dir Swat (Devolution and Distribution of Property) Regulation, 1972, the Dir and Swat (Settlement of Disputes of Immovable Property) Regulation, 1972, the Distribution of Property (Chitral) Regulation, 1974 (II of 1974), or the Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (II of 1974), shall be deemed to have been validly passed and shall have, and shall be deemed always to have had effect accordingly."
17. It was contended on behalf of the appellants that as the orders of the Federal Land Commission stood validated by the Ordinance, these could no longer be subjected to review by the Tribunal.
This contention is misconceived.
Considering the circumstances in which the validating Ordinance was made it is quite clear that its purpose was to cure the 'defect' which had been pointed out by the Lahore High Court in the case of Ashiq Muhammad Khan. Its scope could not be extended to affect the power of review created by the special statute under a President's Order. Had the intention of the President been to clothe the orders of the Federal Land Commission with finality, he would have no doubt made appropriate amendments in the Order as well. We are, therefore, unable to accept the contention that with the promulgation of the validating Ordinance the power of review enjoyed by the Tribunal also came to end.
18. As to the question whether Qalang is a rent or not and whether the persons paying Qalong to the owners of the land are tenants of those to whom the ()gang is paid, it stands settled by the judgment of this Court in Civil Appeal No,692 of 1984. Learned counsel for the appellants has been unable to show that the view taken by this Court in the said appeal suffers from any infirmity calling for reconsideration.
19. For the reasons stated above, we find no merit in these appeals which are hereby dismissed.
The parties shall bear their own costs.