P L D 1982 Peshawar 48 (PLP)

FAIZ MUHAMMAD KHAN, J.-Muhammad Shah Khisro Khan, Ex-Nawab of Dir, has filed this constitutional petition, bearing No. 382 of 1981, challenging the recommendations, dated 18-11-1970, made by the Land Dispute Enquiry Commission, the notification, dated 15-9-1972, issued by the Pro vincial Government, the order, -dated 21-10-1972, passed by the Deputy Commissioner, Dir, the order, dated 6-12-1974, made by the Chairman Federal Land Commission and the order, dated 15-8-1981, made by the Chairman, Tribunal Land Dispute Dir, Swat and Chitral as illegal, arbitrary, without lawful authority, void, without jurisdiction and of no legal effect in respect of 'Bagh' and garages specified in the writ petition.

2. The petitioner's claim is that the 'Bagh' and garages mentioned in the writ petition were his private property and were wrongly declared by the Provincial Government as State Property on the recommendations, dated 18-11-1970, of the Land Disputes Enquiry Commission, which were arbitrary and based on no evidence. It is further stated in the petition that the petitioner has been pursuing his claim before various authorities constituted under the relevant Regulation, but in vain. The petitioner, as stated in the petition, ultimately went before the Federal Land Commission, under the same Regulation, against the order passed by the Deputy Commissioner, Dir and the notification issued by the Provincial Government, declaring the disputed property as State Property. By a consolidated summary order passed in 56 revisions, as alleged in the petition, the Chairman, Federal Land Commission, on 6-12-1974, dismissed the revision petition of the petitioner, which order was allegedly not conveyed to the petitioner. It is further stated in this petition that on learning about the order made by the Chair man, Federal Land Commission, the petitioner brought a writ petition before this Court, which was admitted to full hearing. But in the meantime another law, called the Dir and Swat (Devolution and Distribution of Property and Settlement of Disputes of Immovable Property) (Amendment) Order, 1980 (President's Order No. 13 of 1980), was brought into force whereunder by amending the relevant Regulation a Tribunal has been constituted to review a certain category of cases already disposed of by the Federal Land Commis sion. .,In order to try his luck under the said law the petitioner withdrew from the earlier writ petition filed in this Court, reserving his right to again come to this Court in case he was not able to get a favourable decision from the Tribunal. Since the petitioner has failed to obtain relief from the said Tribunal, he has again brought this writ petition wherein all the orders passed against his interest in respect of the property mentioned in the writ petition have been challenged as being without jurisdiction, without lawful authority and of no legal effect.

3. The learned counsel for the petitioner, referring to order dated 5-8-1981 passed by Mr. Justice (Retd.) Qaisar Khan, in his capacity as Chairman of the Tribunal constituted under the President's Order No. 13 of 1980, submitted that the said order is not maintainable as any, one of the grounds mentioned therein could not be relied upon.

4. He further argued that there was no material before the learned Tribunal to come to the conclusion that there was no 'unimplemented order'. He strongly urged that in this case since the petitioner is in possession of the disputed property, any order passed by any forum against his rights would not be deemed as 'implemented' so long as he remains in possession of the disputed property. This argument was advanced before the learned Tribunal, as otherwise reference in the order to the report of the Deputy Commissioner which said that there was no 'unimplemented order' would have been meaningless but appears not to have prevailed with it. In regard to the question whether or not there was any 'unimplemented order' the learned Tribunal relied upon the factual report submitted by responsible public functionary. In presence of such report, the oral assertion of the petitioner as to his possession on the disputed property had no force and was rightly discarded by the learned Tribunal. Further, it being a question of fact, which requires to be proved by production of evidence as to who is in actual possession of the disputed property, cannot be allowed to be agitated before the High Court in Writ jurisdiction, specially when the forums of exclusive jurisdiction constituted under the law have already rejected the claim of the petitioner. The copies of the two statements on which the petitioner wants this Court to decide the matter in his favour and declare the disputed property as his private property are statement against statement, given by two rival groups in the proceeding in which the State as such was not a party, and as such, in our view, do not constitute suffi cient proof of the title claimed by the petitioner in respect of the disputed property. The decision on question of fact by this Court would only be possible when some other oral or documentary evidence is permitted to the parties to be brought on the record through the mouth of the witnesses, or otherwise, leading to full inquiry into title, which in a writ petition is not permissible. '

5. The perusal of the documents marked Annexures `A', 'B' and `C' attached to this writ petition would show that two Commissions were appointed by Government, one in the year 1967 and the other in the year 1970, to investigate into the claims of various parties in respect of the property, both residential and agricultural, situated in the area now comprising the Districts of Chitral, Dir and Swat. In respect of the disputed property, and some other property which is not relevant for the purposes of this writ petition, a claim was lodged before the Commission appointed by Government in the year 1967 by the Elders of Chakdara. That claim was contested by the Nawab of Dir, who was then Ruler of the State. In' respect of their claim the Elders of Chakdara had given joint statement before the Commission, claiming that the Nawab had entered into forcible possession of this disputed property, the income whereof was being collected in the private Treasury of Nawab. The Elders had claimed restoration of possession of the property as well as its income for the period of 20 years. On behalf of Nawab of Dir his two agents, Amanullah Khan and Arshullah, had appeared before the Commission and stated that the disputed .property was in possession of Nawab of Dir since the time of Nawab Muhammad Sharif Khan. It was also stated by them before the said Commission that they had no record to show as to how the property had come in possession of the Nawab of Dir. It was also stated that Chakdara Bagh and garages were in personal possession of Nawab of Dir and the rest of the property' was in possession of the State. Before the Commission constituted in the year 1970 the parties had not produced any other evidence, except placing reliance on the statements already made before the former Commission (Annexure `C'). This was the entire evidence placed before the Commission constituted in the year 1970, which had recommended that the disputed property be declared as the State Property. Subsequent decisions made by the various forums constituted under the relevant Regulation were based on the recommendations of the Commission, in accordance with the specific provisions to that effect contained in the relevant Regulation, as rightly pointed out by Mr. Justice (Retd.) Qaisar Khan, Chairman of the Tribunal.) Reading both the statements aforesaid together the Commission, as well as the forums constituted under the relevant Regulation, could come to the conclusion that the disputed property was the State Property. It is quite another thing that the High Court or some other Courts may on that evidence come to a different conclusion, but this fact alone would not constitute a valid ground for interference on writ side in the exclusive jurisdiction exercised by the forums constituted under the special law. The decisions made by such forums are neither perverse, nor arbitrary, nor were arrived at by mis reading or non-consideration of the evidence. In this regard, therefore, the authorities referred to in his arguments by the learned counsel for the petitioner, reported as P L D 1976 Quetta 17 ; 1969 S C M R 517 ; 1972 S C M R 395 and P L D 1969 S C 45, are not applicable as being distinguish able on facts.

6. The writ petition is also hit by. the principle of ]aches. The recommendations to the detriment of the petitioner's interest were made by the Land Dispute Enquiry Commission on 18-11-1970, the notification of the Provincial Government against his interest was issued on 15-9-1972, the order of the Deputy Commissioner was made against .him on 21-10-1972 and the respondent No. 2 (Federal Land Commission) had made an order against him on 6-12-1974. The petitioner filed his first writ petition in the High Court challenging all these recommendations and orders on 31-5-1976, which was after a period of about 1i years. No plausible explanation is forthcoming on the file for such delay. Since his previous writ petition was hit by the principle of laches, this writ petition filed in this Court on 3-10-1981 is certainly hit by the same principle.

7. For the reasons stated above, this writ petition is dismissed in limine. S. A. H. Petition dismissed.