' MUHAMMAD AFZAL LONE, J.---This appeal, by leave, is directed against the judgment dated 13-5- 1980 passed by a Division Bench of the Peshawar High Court, Peshawar.
2. The facts are that the respondents, who are Osa Khel Afghans, on 19-8-1968 moved an application before the Tehsildar Balambat, District Dir, complaining that the appellants had trespassed into their land, brought it under cultivation and also raised construction thereon. They prayed for restoration of possession. This application was dealt with under custom and contested by the appellants. The matter was referred to a `Jirga' which on 28-11-1968 rendered an award against the appellants that they had no right of 'Mot? In the land in dispute brought under cultivation by them, over which they also raised construction. The Tehsildar Balambat by his order dated 4-12-1968 accepted the award. Against this order the appellants preferred an appeal before the Assistant Political Agent, Timergara which was dismissed on 23-4-1969 on the ground that the order dated 4-12-1968 was founded on the award of the `Jirga' members appointed with the consent of the parties. Aggrieved with this dismissal, the appellants preferrd a second appeal before the Political Agent which was accepted and the case sent back to the Tehsildar with the direction to appoint a fresh `Jirga' for adjudication of the dispute between the parties. It appears that in the post-remand proceedings, the appellants made a move that the dispute be decided according to Shariat. It is discernible from the file that the matter as to the appointment of a fresh `Jirga' shuttled on between the Courts of the Tehsildar, Assistant Commissioner and the Deputy Commissioner and ultimately a fresh `Jirga' was appointed vide latter's order dated 2-8-1969, which after spot inspection gave an award against the appellants. This award was affirmed by the Assistant Commissioner, Timergara under his order dated 15-6-1973.
3. The validity of this order was assailed by the appellants through an appeal before the Deputy Commissioner, Dir, which was rejected on 19-1-1974. According to the appellate authority the `Jirga' gave an impartial opinion after spot inspection, which was justifiably upheld by the Assistant Commissioner. The appellants thereafter preferred a second appeal before the Additional Commissioner, Malakand Division, but he declind to interfere with the orders of the authorities below. The operative part of the order dated 21-5-1974, dismissing the appellants' second appeal, runs as under: "The remand order of 2-8-1969 is remadned for fresh Jirga. They did not agree to the appointment of the Jirga. The appellants wanted Shari decision. The respondents Pardasi Khan etc. Desired a decision through Jirga. The tussle continued. It was ultimately referred to a Jirga in compliance with the remand order. There could be no other alternative. The appellants Aminullah etc. In particular wanted the tussle to continue as to procedure of decision of the case. The Jirga's Award is in favour of the respondents. The order of Assistant Commissioner, Timargara dated 15-6-1973 based on this finding is correct. The order under appeal of Deputy. Commissioner, Dir is correct.
One of the points in the appeal raised is that the Land Commissioner by its decision of 29-9-1972 has held the suit land as the property of Aminullah, Raza Khan and Zaibullah appellants. That decision is a general order. It does not specifically mention the suit land. It does not specify and identify the disputed land. That decision is obviously to prevail. The appellants are not to be afraid of any adverse order. It will not stand against the order and finding of the Commission."
4. Dissatisfied with the orders in second appeal, the appellants made a move before the Chairman, Federal Land Commission, Islamabad, solciting his intervention. They claimed that the land in question was situate in "Shattai Darra". That the dispute regarding ownership of land in that Darra between Osa Khel and Utman Khel tribes stood decided by the Dir land Disputes Enquiry Commission, and Utman Khel were declared as owners thereof and consequently all individual claims and the decisions thereon by any Court were rendered as ineffective on their rights. Their contention thus was that the land in dispute was covered by the decision of the said Commission and all the orders passed by the Authorities concerned, declaring the Land as property of the respondents were without lawful authority. This contention weighed with the learned Chairman, Federal Land Commission. His order dated 2-6-1976 in this behalf is reproduced below:- "From my order in Revision Petition No,RP. 1(373)FLC/74 dated 1-6-1976 in respect of Malakand and Shatai Derra it is clear that all the alleged tenants Utmankhel which obviously include the petitioners, if they are in possession of some of the land in this Darra, have been declared owners.
In view of this finding, the orders challenged by the petitioners can be ignored as the orders passed by the authorities under MLR-123 override all other laws and orders passed thereunder. As a matter of fact the Additional Commissioner has already mentioned this petition of law, in view of the above, this Revision Petition is disposed of as such."
5. The facts which led to the passing of the order dated 1-6-1976 are that under Notification No,66.S.O.(SPL)/HD/70 dated 8-10-1970 the Government of N.-W.F.P. In the Home Department, constituted a Commission known as "Dir-Swat Land Disputes Enquiry Commission" to enquire into and identify the nature and extent of the agrarian problem in District Dir with special reference inter alia, to the property disputes between the land owners and the tenants and further to make recommendations and suggest measures to solve this problem so that the conflict could be ended and land settlement operations conducted on sound and firm basis. It is evident from the record before us that both the sides i.e, Osa Khel Afghans and their tenants, i.e, the members of Utman Khel tribe, the appellants herein, were arraigned before the Commission According to the respondents, the land in dispute consisted of 80 Motais, out of which the tenants gave them rent for 60 Motais at the rate of 1/4th of the produce and for the remaining `Motais' they did `Begar' for the Nawab and supplied "Naukars' for his service on behalf of the landlords. They contended that as the Nawab abolished `Begar' their tenants discontinued the payment of rent for 20 `Motais' held by them in lieu of provision of `Begar' to the Nawab, as well as for rest of the land. On the other hand, Utman Khel tribe claimed that they were in possession of the land for the last several generations and like other owners did `Begar' only to the ruler of the State and neither paid rent nor anything else to the respondents or to anyone else. These contentions of the appellants seemingly influenced the decision of the Commission as according to its recommendations Utman Khel, did only `Begar' for the Nawab. The Commission maintained that:-- "Their service or Begar to the State amounted to payment of Government dues only and nothing more. Under the principles of the Punjab Tenancy Act read with N.-W.F.P. Tenancy Act they are entitled to be treated as full owners. The rights of the Osa Khel to the ownership of unculturable waste will not be affected, but the Utman Khel etc. Will be free to graze their cattle and cut wood for their private use only."
' In the meanwhile on 12th April, 1972, Martial Law Regulation No,123 commonly known as "Settlement of Immovable Property Disputes (Dir and Swat) Regulation", was promulgated under which the Commission appointed by the Provincial Government vide Notification No,66.S.O.(SPL)/HD/70 dated 8-10-1970 was adopted for the purposes of said Regulation. On 29-9-1972 the Deputy Commissioner, Dir in pursuant to the powers vested in him by the Provincial Government vide Notification No,10/6-H(SOTA)-11/72 dated 22-5-1972 issued under the said Regulation accepted the recommendations of the Commission and declared "that the Utmankhel are full owners of the land in Shattai Darra. This will not affect the rights of the Osa Khel to the ownership of the unculturable waste lands but the Utmankhel etc. Will be free to graze their own cattle and cut fuel wood for their personal use only". Both the sides challenged this order through appeals before the Provincial Government which were heard by an Officer On Special Duty in the Tribal Affairs Department of the N.-W.F.P., and rejected by a single order dated 9-10-1973. It appears that both the sides thereafter invoked the revisional jurisdiction of the Chairman, Federal Land Commission. It seems that these revisions which related to Malakand/Shatai Darra were heard alongwith these concerning the affected persons of Kohana Darra. These revision petitions including the one finding mention in the Federal Land Commission's order dated 2-6-1976 were disposed of vide order dated 1-6-1976 as under:-- "In its report the Commission recommended that the alleged tenants be declared as owners of the disputed lands in their possession in both the Darras. However, in its recommendations the following two exceptions had been made:--
(1) In respect of Malakand Darra it was recommended that some of the disputed land for which nine Naukars or Malatar were supplied to the State had been taken in possession by the landlords and since the nature of the tenure of that land had changed, it might be allowed to be retaind by the landlords.
(2) In both the Darras it has been recommended that the ownership rights of the landlords in unculturable waste land will vest in the landlord& However, Utmankhel would be free to graze their cattle and cut wood for their private use only.
' This recommendation was accepted by the Provincial Government and was implemented by the Deputy Commissioner, Dir as such, the appeals of both the parties were rejected by the Provincial Government and both the landlords and tenants have filed these Revision Petitions before the Federal Land Commission.
' I have heard the learned counsel for the parties and have carefully perused the record. I see no force in the petitions and therefore, agreeing with the reasoning given by the Commission, all the revision petitions of both the parties are dismissed."
6. Dissatisfied with the orders of the Federal Land Commission, the respondents invoked the writ jurisdiction of the Peshawar High Court, Peshawar. Before the High Court on behalf of the respondents it was contended that the land was neither situate in Malakand nor Shattai Darra; that the dispute between the parties was not that of landlord and tenant, and each side claimed ownership of the land on the basis of title and that, therefore, controversy arising in the instant case was not covered by MLR-123. Consequently, it was urged that neither the Dir-Swat Land Disputes Inquiry Commission enquired into this dispute nor made any recommendations; rather the matter fell beyond the ambit of the reference made to it by the Provincial Government. In these circumstances, in the submissions of the respondents, the Federal Land Commission fell in error in relying upon its decision in Revision No,RP. 1 (373) FLC/74, as they were not party to it and further the matter did not arise out of a dispute between landlord and tenant. Upon these premises the Federal Land Commission's order impugned before the High Court was sought to be declared as without jurisdiction.
7. The High Court found that in the parawise comments filed by the Federal Land Commission it was conceded that the controversial issue as to whether or not the land was included in the Malakand or Shattai Darra was not gone into by the Commission. It was explained that under the Commission's order the benefit was conferred on the appellants subject to the conditions that the land was located in Malkand or Shattai Darra and they were in possession thereof. After dilating upon the stand taken up by the Federal Land Commission, the learned Judges noticed that in the Additional Commissioner's order dated 29-9-1972 it was clearly stated that the decision of the Dir- Swat Land Disputes Inquiry Commission was of a general nature and did not specifically mention or identify the land in question. The High Court then referred to the order passed by the Deputy Commissioner, Dir on 19-1-1974 which showed that `Jirga' in its award dated 4-12-1968 opined on the rights of the parties by determining the boundaries of the land after inquiry at the spot with which the Assistant Commissioner Timergara concurred. The High Court observed that in the award the land was not described as part of Malakand or Shattai Darra and found that it was the property of the respondents. After thorough examination of the record before him the learned author Judge came to the conclusion that: "In view of the above discussion I am satisfied that the Chairman, Federal Land Commission had no jurisdiction to give a finding about this land muchless to base his finding in respect of the same solely on his decision in Revision Petition No,RP. 1(373)/FLC/74 as the land in question is neither a part of Malakand Darra nor of Shatai Darra and the dispute between the parties right from the very beginning had not been in the capacity of a landlord and tenant. Each party had been claiming the same to be owned by them and in that respect the present respondents Nos.1 to 3 had gone to various forums for seeking their redress but failed to achieve their object. This Writ Petition No,151 of 1976 is, therefore accepted and it is declared that the impugned order of the Federal Land Commission is without any lawful authority, hence of no legal effect."
8. At the leave granting stage it was urged that after having held that the Federal Land Commission did not at all advert to the jurisdictional facts the High Court should not have given a finding of fact that the land was not part of the property located in Malakand or Shattai Darra, which was the subject-matter of the tribal dispute and further that controversial issue which came up before the Federal Land Commission was not of the nature covered by MLR-123. Leave was granted to examine the point whether it was a fit case where the proceedings should have been remanded to the Federal Land Commission for determination of jurisdictional facts.
9. We have heard the learned counsel for the parties at some length. On behalf of the appellants the contentions raised by them in the leave granting order have been reiterated before us. In order to evaluate these submissions reference may be made to para.3 of MLR-123 which provides that:-- "3.--(1) All disputes relating to the ownership of or any right or interest in, any immovable property in the former States of Dir and Swat to which any of the following persons are parties; shall be decided by the Provincial Government or an officer authorised by it in this behalf, namely:-
(a) the tenants and ex-Rulers of the said former States or their respective heirs; or
(b) claimant landlords and the ex-Rulers of the said former States or their respective heirs; or
(c) the landlords and tenants.
(2)
(3) .................................
' It is to be noticed that subject to the general directions of the President such disputes were to be decided on the basis of recommendations of the Dir-Swat Land Disputes Enquiry Commission. The award of the Commission embodying its recommendations for settlement of the dispute between Osa Khel tribe to which the respondents belong and Utman Khel tribe of the appellants, in their capacity as landlord and tenant, relating to the land in Shattai Darra has been referred to in some detail in the earlier part of this judgment. As already observed, these recommendations were accepted by the Deputy Commissioner, Dir on behalf of the Provincial Government. The order of the Federal Land Commission assailed by the respondents before the High Court was passed by it as a revisional authority on the strength of the powers conferred on it under para. 5 of MLR-123. The Federal Land Commission could assume jurisdiction only if the parties to the dispute brought before it were covered by one of the categories enumerated in para. 3 of the Regulation. We may add that for delivering a decision on merits, the Commission was not required to embark upon much exercise, for, so far as the land in Shattai Darra was concerned, the dispute had already been settled by the Provincial Government and that settlement was upheld even by the Commission in revision by its order dated 1-6-1976 and thus, it attained finality. The major issue before the Commission was whether the jurisdictional facts qua the subject-matter of the dispute referred to Dir-Swat Land Disputes Enquiry Commission and the parties thereto in terms of para. 3 ibid were in existence. But, as maintained in the impugned judgment, the Federal Land Commission assumed jurisdiction without adverting to the issue whether the state of facts on which its jurisdiction depended were in existence. The High Court, however, on examination of the material on the record came to the conclusion that the jurisdictional facts essential for assumption of jurisdiction by the Commission were completely absent and, therefore, it acted without jurisdiction. It would be instructive to refer here to the observations of Kaikaus, J., who spoke for the Court in Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698), touching upon the doctrine of jurisdictional facts:-- "A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds no body and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi-judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts. For instance the Government may be empowered to acquire property if it is 'satisfied' of the existence of a public purpose for such acquisition. If the Government validly reaches a conclusion as to the existence of a public purpose its order will be legal provided of course that the circumstances which it has found to exist do in law constitute a public purpose. The Government still will have no jurisdiction to determine the connotation of 'public purpose' and it will not be able to validate an acquisition by a misinterpretation of 'public purpose'. It is the Court which will determine what is meant by 'public purpose'. So far as special judicial tribunals are concerned they are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. If an election tribunal is empowered to hear election petitions in respect of particular elections it will always have to determine whether the petition lodged before it relates to such an election, but if as a matter of fact that petition does not relate to such an election any proceedings taken by the tribunal in that petition will be void in spite of a finding by the tribunal to the contrary?
10. It will be seen that finding of fact that the land in question was not located in Shattai Dana was given by the High Court in determining the issue that the conditions precedent for exercise of jurisdiction by the commission were not in existence. The High Court inevitably had to go into the Question of facts because unless such a finding was rendered the High Court could not step in.
Normally, in exercise of writ jurisdiction the High Court does not adjudicate upon disputed questions of facts, but, in order of find out whether a tribunal of inferior jurisdiction remained within the sphere of its jurisdiction, determination of jurisdictional facts may become incumbent upon the High Court; thus in a way determination of jurisdictional facts is an exception to the unreviewability of facts. Even, otherwise, we may observe that it is a matter of discretion and not a question of jurisdiction that the High Court may determine question of fact. If a finding of fact given by a tribunal of exclusive jurisdiction is so glaringly contrary to the material placed before it, that the error floats at the surface of the record there is nothing to prevent the High Court to render a finding afresh on the basis of the material available on the file. Be, as it may, the parties are enduring this litigation for the last about 23 years, we are not persuaded to adhere to the technicalities and remand the case to the Federal Land Commission merely for ascertainment of jurisdictional facts, which would again be open to scrutiny by the High Court. For critical examination of the judgment of the High Court, we have ourselves gone through the record and find that in their application submitted to the Tehsildar which partook of a plaint the respondents specifically asserted that the appellants trespassed into their land brought it under cultivation and further started construction over the same. This application fully demonstrates that the controversy brought for adjudication before the Rawaj Courts was germane to divergent claims of the parties as to their title and did not relate to any issue between the landlord and tenant. Further according to the award dated 28-11-1968 given by the Jirga; the members of the Jirga after spot inspection described the land by boundaries. It does not indicate that the land is located in Shattai Dana. It is clearly mentioned therein that the appellants built Kotha in the land and they had no right in the property. The Assistant Commissioner in his order dated 15-6-1973 unequivocally stated that Shawara i.e, uncultivable land belonged to the respondents, which was recently brought under cultivation by the appellants and they constructed Kotha on it three years ago. Apart from these documents, there is other material to hold that the dispute adjudged by the Rewaj Courts was not hit by MLR-123. It is noteworthy that even under the settlement of dispute by the Provincial Government relating to land in Shattai Dana; Shawara land is owned by the respondents. Looked from any angle, the appellants have no case and the matter is not amenable to the jurisdiction of the Federal Land Commission.
' For all these reasons this appeal having been found without merit is hereby dismissed, leaving the parties to bear their own costs.