2018 PLP 1864 (SCMR)

EJAZ AFZAL KHAN, J.

The issue raised in this case is that the Bahria Town has encroached upon a great deal of forest land. Demarcation has been conducted at various levels but no conclusive finding could be handed down. Mr. Ali Zafar, learned ASC appearing on behalf of the Bahria Town contended that demarcation of the forest land and the land in contiguity was conducted in 2007; that the said demarcation proceedings were scrutinized by the NAB Authorities and Provincial Ombudsman during the proceedings of Suo Motu Case No. 03 of 2009 and found to be correct and that on the basis of the said proceedings an area measuring 1170 kanals of the forest was found to have been encroached by Bahria Town and an area measuring 765 of the Bahria Town was found to have been encroached by the Forest Department and that the area thus found to have been encroached was not only accepted by one another but mutations witnessing exchange of the said areas were also entered and attested. The learned ASC went on to argue that the confusion in this case has arisen on account of wrong entries in the revenue papers showing that total area of Takht Pari as 2210 acres which in fact is 1741 acres and that if this position is accepted there could be no dispute about encroachment especially after its settlement resulting in the exchange of the property and attestation of mutations as mentioned above. The learned ASC next contended that if the field map of 1956-57 and measurements therein are considered, no area can be said to have been encroached by the Bahria Town. He lastly argued that once the matter was set at rest on the attestation of mutations and disposal of SMC. No. 3 of 2009 on 05.06.2013, C.M.A. No. 3854 of 2014 raising the same issue could not have been entertained to revive an issue which was past and closed.

2. Syed Zahid Hussain Bukhari, another learned ASC for Bahria Town also reiterated the arguments of Mr. Ali Zafar learned ASC for the Bahria Town.

3. Mr. Aitzaz Ahsan, learned Sr. ASC appearing on behalf of the investors reiterated the arguments as were addressed by Mr. Ali Zafar. He, however, dwelt at length while highlighting the bias of Iftikhar Muhammad Chaudhary, the former Chief Justice of Pakistan against Malik Riaz, Chief Executive of the Bahria Town because of the well-known scandal of Arsalan Iftikhar, a son of the then Chief Justice. The learned Sr. ASC next contended that once the matter was concluded vide order dated 5.6.2013 in SMC. No. 03 of 2009, it could not have been reopened; that any one-sided demarcation conducted pursuant to the order dated 18.6.2013 passed in the chambers of this Court cannot be acted upon firstly because no notice of such proceedings was given to the Bahria Town and secondly because it was not conducted on the spot. The learned Sr. ASC by referring to the order dated 2nd and 3rd November, 2015 passed in Crl. O. P. No. 110 of 2014 by a three-member bench of this Court contended that where this Court itself held that as for Takht Pari Forest, there needs to be a coordinated effort between the Forest Department, Revenue Department and Survey of Pakistan, any demarcation report without the coordination of the three departments cannot be construed to have been conducted in compliance with the above-mentioned order of this Court. Whether the total area of Takht Pari, the learned Sr. ASC maintained, is 2210 acres or 1741 acres is a question to be determined by the civil court, therefore, this Court cannot determine such question in a proceeding of this nature. The learned Sr. ASC contended that where the Bahria Town having settled the dispute raised superstructure on the property and spent a great deal of money on its development, it would be unjust to oust it therefrom especially when it is willing to pay the compensation for the property. The learned Sr. ASC next contended that where report dated 20.12.2006 was accepted by the parties and no appeal was filed thereagainst, it attained finality. The learned Sr. ASC further contended that where land of reserved forest was utilized by DHA and many other housing societies without any caveat, Bahria Town could not be treated differently. He lastly argued that where human rights cases are dealt with by the Human Rights Cell, there was absolutely no occasion to give different treatment to H.R.C No. 4729-P of 2011.

4. Mr. Razzaq A. Mirza, the learned Addl. A. G. Punjab by referring to the field map of the years 1885 and 1956 and the record of rights of the year 1956 contended that the total area of Takht Pari is 2210 acres and that if the demarcation report dated 15.4.2017 conducted on the basis of the aforesaid figures is considered, the area of 684 acres has rightly been found to have been encroached by the Bahria Town and that the encroachment thus worked out appears to be perfectly correct on all accounts. This report, the learned Addl. A. G. maintained is further strengthened by the entries made in the Punjab District Gazetteer Volume XXVIII, published in 1907, working plan of scrub forest of Rawalpindi, West Forest Division for the period 1933-34 to 1952-53, working plan of 1966-67 to 1975-76 and working plan of 1989-90 to 2019-20 showing that the total area of Rukh Takht Pari is 2210 acres. The learned Addl. A. G. lastly contended that when it is unshakably established on the record that the total area of Rukh Takht Pari is 2210 acres, one or any number of reports based on the assumptions that its total area is 1741 acres cannot hold the field notwithstanding such reports were approved by the then Chief Minister of the Province.

5. Mr. Malik Muhammad Shafi, petitioner in H.R.C. No. 4729-P of 2011 contended that a huge property of the Forest Department has been grabbed by the Bahria Town by tampering with the record in collusion with the officials of the Forest Department and the revenue hierarchy; that the Chief Minister could have nipped the evil in the bud but he too having been obliged by the land grabbers illegally approved the demarcation report and the exchange effected pursuant thereto. He also referred to the mutations attested in favour of the front man of the Chief Minister and then in favour of his family members and that the litigation has been going on at various levels including this Court for more than a decade but it does not admit of any end due to the dilatory tactics of the counsel representing Bahria Town notwithstanding it is too evident to be disputed that the area of Rakh Takht Pari is 2210 acres. This aspect has also been highlighted in Crl. O. P. No. 110 of 2014 filed by Dr. Muhammad Shafiq-ur-Rehman. He also accused the Provincial Bureaucracy and the then Chief Minister to have colluded with the Bahria Town in manoeuvring the approval of the demarcation reports based on erroneous assumption.

6. We have carefully gone through the record and considered the submissions of the learned Sr. ASC and ASCs for the Bahria Town, the applicants appearing in person and the learned Addl. A. G. Punjab.

7. The first and foremost point to be considered in this case is as to what is the total area of the forest land known as Rukh Takht Pari and what are the documents establishing it. The best evidence to prove the area is the record of rights and field maps prepared during the settlement of the area in 1956-57. According to the record of rights the total area of Rukh Takht Pari is 17678 kanals and 17 marlas. This area when converted into acres comes to approximately 2210 acres. This record having been prepared during the settlement of 1956-57 is blessed with much greater presumption of truth. The raison detre behind such presumption is that the settlement is always invariably carried in the presence of village proprietary body and during such course every nook and corner of the land is measured and demarcated afresh. Therefore, much stronger evidence is required to rebut this presumption. Nothing has been brought on the record to dispute the entries appearing in the record of rights prepared during the settlement of 1956-57. The learned Sr. ASC and ASCs for the Bahria Town during the course of their arguments and even in their written arguments submitted in the Court placed reliance on the same documents.

8. Another independent, impartial and above-board evidence appearing in the form of the Punjab District Gazetteer Volume XXVIII, published in 1907, working plan of scrub forest of Rawalpindi West Forest Division for the period 1933-34 to 1952-53, revised working plan of 1959-60 to 1963-64, 1966-67 to 1975-76 and working plan of 1988-89 to 2019-2020 amply and overwhelmingly proves that the total area of Takht Pari forest is 2210 acres. When an undisputed evidence of this type has been available we fail to understand what mode of calculation reduced the area of 2210 to 1741 acres. Yes, the then Chief Minister approved the reports of demarcation carried out earlier but no sanctity could be attached to such reports when the officials demarcating the land based their finding on the assumption that the total area of Rukh Takht Pari is 1741 acres which is erroneous on the face of it. What led the then Chief Minister to be so benign and benevolent to the encroachers of such a huge area of the forest land has been explained by the applicant in C.M.A. No. 4729 by alleging that the then Chief Minister was obliged by the Bahria Town by transferring 270 kanals of land vide mutation No.966 sanctioned on 22.6.2005 to Ch. Munir Ahmed, the alleged front man of the then Chief Minister, who in turn transferred 200 kanals to Ch. Salik, Ch. Rasikh Ali and Mst. Kharia Shujaat Hussain vide mutations Nos. 995 and 996 sanctioned on 10.04.2008. This is what we have been told about the Chief Minister. But what about the officialdom of the revenue hierarchy and the Forest Department whose watchful presence did little to guard against the intrusion of the Bahria Town and encroachment over a huge area of the forest land? It appears that they too being in league with the intruders let them do what they wanted to do. Thousands of trees were cut with the collusion of the officials of the Forest Department but what is bizarre and baffling is that they did not even wrinkle their noses, nor did they utter a syllable of disapproval. What was this due to? Was it the heat of money which let their responsibility pass off in vapours or was there grease in their palms which let the intruders slip and spiral out of their hands despite violating the law? It is horribly depressing to note that in the age of advanced technology even an encroachment of inches gets detected, but that of hundreds of acres goes unnoticed. In a situation of this type where the officialdom in the revenue hierarchy and the Forest Department acted hand in glove with the encroachers, the Supreme Court has to step in else everything, every government land and every government building shall be gobbled by the grabbers. We have been told that Mr. Malik Riaz is a great philanthropist providing medicines to the ailing poor and food to the needy. But in the given background his case is no better than the one illustrated in the phrase, "rob Peter to pay Paul". If he deserves fame and acclaim for paying Paul he would certainly deserve shame and blame for robbing Peter. He, thus, cannot avoid the consequences of his acts done in contravention of law or off set them with his charitable acts.

9. Much hue and cry has been raised by the learned Sr. ASC and ASCs for Bahria Town by contending that once reports of demarcation have been accepted, a settlement pursuant thereto has been arrived at, the area encroached upon by either of the sides has been adjusted through exchange, mutations in this behalf have been sanctioned and S.M.C No. 3 of 2009 has been disposed of, C.M.A No. 3854 of 2014 raising the same issue could not have been entertained to revive an issue set at rest once and for all. This hue and cry to say the least is without any legal or moral justification when demarcations forming basis of such reports were not conducted in accordance with undisputed entries of the record of rights for the year 1956-57. Similarly, the settlements arrived at between the Forest Department and the Bahria Town culminating an exchange and even the order dated 05.06.2013 of this Court cannot be vested with any sanctity and even finality when the entire proceedings from the inception to the end were based on misrepresentation, erroneous assumption about the area and non-reading of the record in its correct perspective. Such proceedings even otherwise cannot be vested with any sanctity when the revenue staff and officials of the Forest Department being more royalist than the monarch defended the interest of Bahria Town with much greater tenacity than the Bahria Town did itself. This situation has been more picturesque portrayed in one of the verses of Saghir Siddiqi which reads as under: Any order passed on the basis of such reports cannot prevent us from reading the revenue record in its correct perspective drawing conclusions accordingly and reopening the matter thus disposed of. The objection of the learned Sr. ASC and ASCs for the Bahria Town thus being misconceived has to be turned down if not scoffed at. The argument whether the total area of Takht Pari is 2210 acres or 1741 acres is a question to be dealt with by the civil court and that this Court cannot deal with such a question in a proceeding of this type is shorn of force when the entries in the record of rights of 1956-57, field maps of 1886 and 1956-57, Punjab District Gazetteer Volume XXVIII, published in 1907, working plan of scrub forest of Rawalpindi, West Forest Division for the period 1933-34 to 1952-53, working plan of 1966-67 to 1975-76 and working plan of 1989-90 to 2019-20 clearly and unmistakably show that total area of Takht Pari is 2210 acres. It, therefore, is not a question to be referred to the civil court when the record of rights of 1956-57 has also been relied upon by the Bahria Town itself in the written arguments submitted by the learned ASC therefor without questioning the sanctity of the entries before any legal forum and even in the suit instituted before the civil court.

10. The argument that where the Bahria Town having settled the dispute raised superstructure on the property and spent a great deal of money on its development, it would be unjust to oust them therefrom especially when they are willing to pay the compensation for the property is vacuous both legally and morally when they knew all along that the property they took possession of and raised superstructure thereon was Forest Land. The argument that where land of reserved forest was utilized by DHA and many other housing societies without any caveat, Bahria Town could not be treated differently is legally incorrect as one or any number of wrongs cannot justify yet another. However, if at all any forest land has been utilized by DHA or any other society in violation of the provisions of law, we would request the honourable Chief Justice of Pakistan to take Suo Moto Notice of this fact so that all those who are found to be similarly placed be treated similarly. The argument that where human rights cases are dealt with by the Human Rights Cell, there was absolutely no occasion to give different treatment to H.R.C. No. 4729-P of 2011 is devoid of force as many human right cases were listed in the Court and decided accordingly. The argument that that any one-sided demarcation conducted pursuant to the order dated 18.6.2013 passed in the chambers of this Court cannot be acted upon firstly because no notice of such proceedings was given to the Bahria Town and secondly because it was not conducted on the spot in accordance with the order dated 2nd and 3rd November 2015 passed in Crl. O. P. No. 110 of 2014 is not without substance when a three-member bench of this Court on 2nd and 3rd November 2015 observed by holding that as for Takht Pari forest, there needs to be a coordinated effort between the Forest Department, Revenue Department and Survey of Pakistan.

11. As a sequel to what has been discussed and highlighted above, we declare that the area of Takht Pari is 2210 acres; that exchange of land purportedly encroached by Bahria Town and the Forest Department and attestation of mutations in this behalf being based on erroneous assumption about the area is against law and the record and as such of no effect and the order passed in S.M.C. No. 3 of 2009 is recalled and direct the Forest Department, Revenue Department and Survey of Pakistan to conduct a fresh demarcation after giving notices to Forest Department and Bahria Town and submit their report within one month before the implementation bench of this Court. We, therefore, request the honourable Chief Justice of Pakistan to constitute an implementation bench in this regard. However, if any third-party interest has been created over the Forest Land what to do therewith and how to deal therewith shall be decided by the implementation bench. The NAB is directed to investigate the case and file references against all those who are found responsible for committing, aiding and abetting the crime at any level or in any form.

12. For the reasons discussed above, Civil Review Petitions Nos.155 to 156 of 2015, 245 of 2013 and 473 of 2015 are dismissed. Criminal Original Petition No. 110 of 2014, Human Right Case No. 4729-P of 2011 as well as all the other Civil Misc. Applications are disposed of in the terms mentioned above. Sd/- Ejaz Afzal Khan, J I had the privilege of going through the judgment authored by my learned brother Justice Ejaz Afzal Khan, but have not able to persuade myself to agree with the same and would therefore respectfully add my dissenting note. Sd/- Maqbool Baqar, J I agree with the opinion of my learned brother Justice Ejaz Afzal Khan. Sd/- Faisal Arab, J ORDER OF THE COURT With the majority of two by one, the final order of this Court is recorded in paragraph 11 of the majority judgment. Sd/- Ejaz Afzal Khan, J Sd/- Maqbool Baqar, J Sd/- Faisal Arab, J MAQBOOL BAQAR, J.

It was in the year 2005 that a dispute regarding encroachment upon the lands of Rukh Thakt Pari forest, and those adjacent thereto arose between Bahria Town and the Forest Department, Punjab. Each alleged encroachment over their lands against the other. Both filed suits in this regard against each other, however in order to resolve the controversy they agreed for demarcation of the lands and to settle the dispute accordingly. On 29.6.2006 a MOU was signed by the parties in terms whereof teams comprising of officers from the forest and revenue departments, were constituted by the Commissioner, Rawalpindi for physical demarcation of the lands. The teams commenced the demarcation, reports whereof were prepared and monitored on daily basis. The exercise was concluded on 20.12.2006 and a final demarcation report of Rukh Takht Pari was thus prepared. The report was signed by the representatives of the two departments as well as of the Bahria Town, and was also authenticated by Deputy Collector, Rawalpindi, and than filed before the Board of Revenue and submitted to the Forest Department.

2. According to Mr. Aitzaz Ahsan, the learned Sr. ASC it is only the above demarcation that has been carried out in accordance with law and in compliance with the requirements of the Land Revenue Act, 1967, and Rules 67-A and 67-B of the Land Revenue Rules, 1968, and that the above was the only exercise wherein the prescribed instruments were used and the relevant land record and other relevant documents were taken into consideration.

3. As per the said report Bahria Town had occupied 1170 kanals of the Forest land, whereas Forest Department was in possession of 765 kanals of the Bahria Town land. According to Mr. Aitzaz Ahsan none of the two had occupied any land in excess of the land owned by them intentionally, but such has happened because the land in question is a shrub land with impenetrable bushes and had hardly any visible sings or marks of demarcation.

4. It is stated that since Bahria Town had already developed the land found to be occupied by it in excess of its own land, and had raised construction thereon, and such excessive land was also not cultivable, it was found appropriate that instead of retrieving their lands, the parties may make adjustment by way of exchange.

5. A summary was accordingly submitted before the Chief Minister Punjab who approved the same on 21st March, 2007. The exchange was accordingly done and necessary mutations, being mutations No. 2, and 6008 respectively, were affected on 20.11.2007. The possession of the exchanged lands was also handed over by the parties to each other. Statements of the respective parties in terms of the above settlement were recorded before the Civil Judge in the aforesaid two suits. The suits were accordingly disposed of by order dated 15.03.2007. The dispute thus came to an end.

6. Through order dated 04.05.2009 passed in SMC No. 3/2009, whereby one Muhammad Ismail alleged encroachment over Rukh Takht Pari forest, this Court was pleased to direct the Ombudsman of the Province of the Punjab, to conduct a thorough inquiry, after visiting the site and examining the revenue record, and to submit report in the matter.

7. The Ombudsman after hearing the parties and examining the relevant record, in his report dated 05.06.2009 noted that the demarcation of land owned by Forest Department, and Bahria Town was made under the supervision of the Board of Revenue, which involved time and effort of a large contingent of revenue officers. He further stated that the EDO (Revenue), Rawalpindi has confirmed that the demarcation was made strictly in accordance with the prescribed procedure as laid down in Land Revenue Rules, 1968 and that the Forest Officers are also satisfied with the demarcation so made. He further noted that neither Rukh Takht Pari forest, nor the private holdings were previously properly identified/earmarked, the lands being "banjar qadeem/ghair mumkan", and that this area even today is not cultivable. The Ombudsman on the basis of the relevant record, his site visit, and after hearing the parties, found that "the allegations in the complaint were not substantiated." Upon receipt of the report, the Registrar of this Court, on the order of the then Hon'ble Chief Justice, informed the Complainant accordingly.

8. Subsequently, one Muhammad Shafi also filed before this Court an application alleging encroachment of the Thakt Pari forest. The application was registered and numbered as H.R.C. No.4729 of 2011 and was clubbed with S.M.C. No.3 of 2009.

9. SMC No.3 of 2009 was disposed by this Court through order dated 05.06.2013, concluding portion thereof, which may be found relevant is reproduced hereunder: "

12. Since, were are not to record evidence and make a determination in these proceedings as to the respective rights/title of the parties in the land in question or as to the Criminal liability of delinquent individuals, the Collector, Rawalpindi who, as noted above, is the competent functionary of the Punjab shall proceed promptly in accordance with law to assert/secure such rights as according to him are vested in the Province. The pending proceedings before the Civil and Revenue forums shall be decided by the competent forums expeditiously and a report of the status of these proceedings be submitted for our perusal within 30 days. SMC No.3 of 2009 stands disposed of."

10. However, on 23 June, 2011 Commissioner, Rawalpindi Division, in pursuance of letter dated 21st June, 2011 of the Conservative Forest Rawalpindi Circle, constituted four different Teams under the joint Chairmanship of Conservator of Forest, Northern Zone, Rawalpindi, and Additional District Collector, to demarcate Takht Pari Forest but since the boundaries between Rawalpindi and Islamabad districts, within which two districts the forest exists, had not till then been drawn, the proposed demarcation could not be carried out but, as noted by the Conservator of forest Rawalpindi Circle in his letter dated 14.9.2011, he directed the functionaries of the forest department, who were members of the demarcation team, to analyse the data already collected by them at their own, and conclude the exercise. The committee prepared the purported demarcation report accordingly, and submitted the same along with maps of Takht Pari and Lohi Bher forest, showing that an area of 684 acres, out of total area of 2210 acres of Takht Pari forest, has been encroached. The said report was submitted by the Conservator forest Rawalpindi to the Chief Conservator with a request for authentication/validation of the report by the Revenue authorities, and also to verify as to which of the various housing societies/entities have encroached upon the said forest land.

11. Through letter dated 23.09.2011, the Conservative of Forest, Rawalpindi Circle requested the Additional District Collector, Rawalpindi for cancellation of the exchange mutations Nos. 2 and 6008, on the purported ground that the approval for such exchange was obtained by the Secretary Forest, instead of the Board of Revenue, who, according to the Conservator Forest, is the original custodian of the forest land. Upon receipt of a notice of the said application. Bahria Town filed a suit for declaration and injunction, against the forest department, government of Punjab. The Civil Judge, after hearing the parties in the aforesaid suit on 15.6.2013, ordered the parties to maintain status vis-a-vis the subject land. The suit is pending for recording evidence.

12. Through order dated 19th October, 2011 the Additional District Collector, Rawalpindi granted permission for review of the two mutations after hearing the parties in "Jalse-e-am". Through order dated 31.10.2011, Tehsilday (Bandobast), Rawalpindi cancelled both the mutations.

13. Against the above cancellation Bahria Town filed an appeal before Collector Rawalpindi who dismissed the same through order dated 9th March 2012, which order was challenged by Bahria Town through a revision before the Additional Commissioner. The revision was allowed and the mutations were restored on 26.04.2012. A revision against such order filed by the Forest Department before Senior Member, Board of Revenue was referred to the Full Bench of the Board, and was dismissed by the said Bench on 12.05.2014. A Writ Petition bearing No.28924/2014 filed by the Forest Department against the said order is pending before the Lahore High Court.

14. However, subsequently on 1st March, 2014 three teams, which were constituted on 10.06.2013, without associating Bahria Town, and without affecting any demarcation, prepared three ex parte reports. These reports alleged that Bahria Town has encroached 526 kanals of the forest department.

15. Since the reports were prepared without associating and hearing Bahria Town, Bahria Town on 7th August 2014, submitted an application to the DCO, Rawalpindi to hear them before authenticating the said reports. Through order dated 13.09.2014, this Court allowed the District Collector, Rawalpindi to get the demarcation reports authenticated.

16. In pursuance of the above order, the DCO, Rawalpindi, on 14.11.2014 submitted a report, being C.M.A. 6040/2014, whereby the DCO observed that since Rukh Takht Pari is surrounded by various Mouzahs, including Mouzah Morgah, Bimla Kanat, Takla Pari, Gali and Shahpur, which areas are fully developed, where residential units, Commercial plazas and markets have been constructed by different individual/entities, it was found impossible to carry out the demarcation, and several efforts in that regard failed, and that in the circumstances a demarcation team consisting of five members from the revenue department resorted to conduct the task by using the satellite imagery and various other techniques. According to the report, in addition to the above effort, the Urban Unit, Planning and Development Department, Government of Punjab was also engaged to find out as to whether the forest land has been encroached upon and, if so, to determine the exact extent, size and nature of the encroachment, such was to be done through use of satellite imagery. The urban Unit was also provided Massavis of Rukh Takht Pari, so that precise determination of any variation in the area under forest be made by super imposing the same on the satellite imagery of the area, in order to facilitate the task, the Forest Department also provided the urban unit, the relevant record in their possession. The report disclosed that by super imposing the Massavi on the satellite imagery the Takht Pari forest was found to be of 1741 acres in size, out of which, an area of 1526 acres is in possession of the forest department and thus only 215 acres could be under encroachment. It is observed in the report that as a result of demarcation effected in the year 2006, an area measuring 146.25 acres was found to be under encroachment, however, in lieu of said encroachment forest department got equal size of land mutated in their favour, which exchange/adjustment was upheld by the Board of Revenue. Regarding the 215 acres of the forest land found under encroachment, through use of satellite imaginary, it was submitted that the relevant department shall examine the same and shall determine as to who amongst Bahria Town, DHA, Agosh Town, Japan road and others, have made such encroachment, so that the encroached land may be retrieved accordingly.

17. In their objections to the above report, the forest department submitted that the forest land of Takht Pari and Lohi Bher forest, Rawalpindi were transferred to the Forest Department vide Notification No. 63, dated 17.02.1887 and that according to the Punjab District Gazette Volume XXVIII.A, Rawalpindi District 1907, Takht Pari is an unclassed forest, and further that as per the working plan for the scrub forests for the period 1933-34 to 1952-53, the area specified for forestation in Takht Pari was 2210 acres, and that similar is the position reflected through the revised working plans for the periods of 1949-50 to 1963-64, and 1966-67 to 1975-76 and so also for the years 1988-90 to 2019-20.

18. Mr. Razzaq A. Mirza, the learned Additional Advocate General, Punjab submitted that the demarcation, carried out in the year 2006 and the report dated 20.12.2006, prepared on the basis thereof, was so carried out and prepared on the assumption that the area of the Rukh Thakt Pari forest is 1741 acres, whereas in fact the area of the forest is 2210 acres. He submitted that in view of the relevant record, which, according to him, clearly reflects that the area of the forest is in fact 2210 acres, the demarcation report dated 15.04.2017 has rightly shown that an area of 684 acres has been encroached by the Bahria Town. The learned Additional Advocate General, Punjab further submitted that his contention regarding the actual area of the forest is supported by the entries in the Punjab District Gazetteer Volume XXVIII of the year 1907, the working plan of scrub forest of Rawalpindi for the years 1933-34 to 1952-53 and of the years 1966-67 to 1975-76 and so also of the years 1989-90 to 2019- 2020, show that the total area of Rukh Takht Pari forest is 2210 acres and not 1741 acres, as wrongly presumed earlier.

19. On the other hand, M/s. Aitzaz Ahsan and Ali Zafar, the learned counsel for various investors and Bahria Town respectively, submitted that the fact that the area of Rukh Takht Pari forest is 1741 acres is supported not only by the afore-noted demarcation, effected in the year 2006, (on the basis whereof, the parties settled their dispute and the suits, filed by them in that regard were disposed of), but the learned Ombudsman, who was directed by this Court to conduct a thorough enquiry in the matter, has also endorsed the veracity of the above report, and found the allegations of encroachment over the forest land incorrect. The learned counsel further submitted that subsequently the Public Accounts Committee of the Punjab Assembly has also found that there was no encroachment over the Rukh Takht Pari forest land. They submitted that in addition to the above, the fact that there is now no encroachment over the forest land by Bahria Town, has also been verified by the Divisional Forest Officer, who in pursuance of the order of the Chief Minister to verify that there is no encroachment over the forest land, carried out thorough inspection and demarcation of the forest land on various dates and through his reported dated 29.04.2010 submitted that there is no encroachment over the forest land and the same is intact. The learned counsel further submitted that the fact that the forest consists of 1741 acres of land, has been further verified and endorsed by the DCO Rawalpindi through his report, submitted on 14.11.2014, being C.M.A. No.6040/2014, which was done by carrying out demarcation, on the basis of the Massavi, prepared in the year 1956, in which year the last land settlement took place, which settlement record is being followed and honoured till date. The Massavi, the learned counsel submitted, is an authentic and genuine public document, and was submitted before this Court by Revenue Department, Punjab, who possesses and holds the same. The learned counsel also submitted that neither have the Revenue Department or the Forest Department challenged the authenticity or the veracity of the said Massavi, nor have they pointed out any defect and/or deficiency therein. They contended that the reliance of the Additional Advocate General on the Punjab District Gazetteer is misconceived and untenable, as the same is contrary to and in conflict with the admitted authentic documents, being Massavi of 1956-57, and any entries regarding the area of the forest, on the basis of the said Gazetteer cannot be relied upon, without the authenticity and the veracity thereof being established after recording evidence. In any event, as per the learned counsel, the Punjab District Gazetteer alone cannot be relied upon as a proof of the size of the forest land, more so when an admitted document, the Massavi of 1956, which in fact shows the boundaries and the exact area of the forest, and is a basic and primary document in that regard, is clearly in conflict with the contents of the Gazetteer. As regards the working plans, relied upon by the learned Additional Advocate General, the learned counsel for Bahria Town submitted that those were not conclusive proof of the acreage of the forest, especially when no document/record to support the contents thereof are available either with the Forest Department or even with the Revenue Department.

20. The learned counsel submitted that the Revenue Department has not filed any record of rights relating to the Rukh Takht Pari forest and/or the area surrounding it. They submitted that there are seven Mouzahs around. Rukh Takht Pari forest, however, the Punjab Government did not produce any record of rights in respect of any of the said Mouzalis in any forum, although such record in respect of other similar Mouzah, namely Subkathar, Manga, Nengal and Kathar have been filed by the relevant departments in another cases, being Cr. Org. No.57/2015. They contended that the record of rights in respect of the seven Mouzahs contiguous to Takht Pari forest would have been helpful in resolving the controversy to a great extent. The learned counsel submitted that the Government has also not filed any field book on the basis whereof the jama bandi, relied upon by the Government, was prepared and that the Forest Department has failed to produce any record of the actual measurement of the forest to substantiate entries in the Punjab District Gazetteer or the working plans, but have based their claim only on the Massavi of the year 1885, which, as admitted by the functionaries of the Revenue and Forest Departments, does not exist, and a purported copy whereof does not bear any signature of any official of the Revenue or the Forest Department. The said Massavi, according to Mr. Ali Zafar, ASC contains boundaries of Mouzah Shahpur, which did not exist in the year 1885, when the purported Massavi was prepared, but the said Mouzah was established and notified in the year 1935 only.

21. The learned ASC submitted that the demarcation report dated 20.12.2006, which pertains to the only demarcation that was physically carried out on the ground itself and was so conducted by the officials of Forest and Revenue Departments strictly in accordance with the provisions of Land Revenue Rules 1968, and under the supervision of the senior most officers, and which report has also been authenticated by the District Collector, Rawalpindi, and endorsed by the Board of Revenue, cannot be ignored, particularly when no appeal, revision or review, as provided for in terms of sections 117, 122 and 161 of the Land Revenue Act has been filed and the matter has attained finality in terms of section 163 of the Act. The learned ASC also submitted that in view of conflicting claims, inconsistent and contrary documents, authenticity and veracity of many of which documents, as submitted earlier, is not free from doubt, the controversy should be left to be decided by the forums below after recording evidence, more so, for the reason that this Court, keeping in view, inter alia, the fact that civil suits and a petition filed by the parties against each other in respect of the present controversy are pending, found it appropriate not to make any determination regarding the rights and title of the parties in the subject land, or in respect of any criminal liability in that regard, and instead directed the Collector, Rawalpindi to proceed to secure the rights, which according to him, may be vested in the Province in accordance with law, and ordered that the pending proceedings before the Civil and Revenue forums be decided by such forums expeditiously, and thus disposed of S.M.C. No.3 of 2009.

22. The learned ASC further contended that since S.M.C. No.3 of 2009 and H.R.C. No.4729 of 2011, were in respect of the same subject matter and contained similar allegations, being encroachment of Takht Pari forest, H.R.C. No.4729 of 2011 could not have been treated and decided differently. As per the learned counsel, in case this Court proceed to determine the rights and title of the parties in respect of the subject lands in H.R.C. No. 4729 of 2011, the same shall be in conflict with and contrary to this Court's earlier decision/determination, not to do so, and let the forums, having jurisdiction in, and being seized of the matter, decide the same after recording evidence. They submitted that the order dated 05.06.2003, passed by a three-member bench cannot be set aside or even modified, without notice of such modification or of its being set aside, to the parties, and also to whose, who have on the faith of the settlement between the parties arrived at in pursuance of the demarcation of 2006, (and endorsed by the Ombudsman in pursuance of this Court's order), made huge investments by purchasing land and properties within the subject area and/or by raising construction therein during a long period of twelve (12) years. The learned counsel pointed out that the demarcation made by Revenue and Forest Departments in the year 2006 and the report prepared in pursuance thereof were upheld not only by the learned Ombudsman, Punjab, who conducted enquiry in pursuance of this Court's order, but were also up-held by the highest Revenue forum, being a Full Bench of Board of Revenue, who ordered restoration of the exchange, mutation affected on the basis of the said demarcation report, and as ordered by Chief Minister accordingly, and a Writ Petition, filed by the Forest Department against such registration is pending before the honourable Lahore High Court, whereas evidence on behalf of the Bahria Town has been recorded in the suits, pending between the parties and the matter is now pending for recording of evidence on behalf of the Forest Department.

23. The position that emerges from the foregoing is that according to the Massavi of 1956-57 the area of Takht Pari forest is 1741 acres. It appears that at the time of the survey and demarcation, carried out by the Revenue and Survey Departments, the area of the Takht Pari forest was taken to be 1741 acres. It was on the basis of the said demarcation that the lands were exchanged between the Forest Department and Bahria Town and the dispute between them regarding encroachment of land was resolved and the suits filed by them against each other were disposed of. Later in pursuance of this Court's order, the Ombudsman, Punjab, after visiting the site and examining the record, endorsed the demarcation report and found the allegation of encroachment, raised through a petition, being S.M.C. No.3 of 2009, as not substantiated.

24. However, subsequently, the Additional District Collector, Rawalpindi, at the request of Conservator Forest, Rawalpindi, granted permission for review of the above exchange/mutation. In the meanwhile, Bahria Town filed a suit against such move, in which suit evidence of Bahria Town has been concluded and the suit is now pending for recoding evidence of the Forest Department. However, through order dated 31.10.2011, Tehsildar (Bandobast), Rawalpindi, purportedly in pursuance of the order of Additional District Collector, cancelled the exchange/mutation, but ultimately a Full Bench of the Board of Revenue, Punjab restored the mutation in a Writ Petition, filed by the Forest Department against the said restoration, which is now pending before the Lahore High Court.

25. Through order dated 05.06.2013, this Court ordered that the proceedings pertaining to the rights and title of the parties in the subject land, pending before the competent Civil and Revenue forums, be decided by them, expeditiously and accordingly disposed of S.M.C. No.3 of 2.009. However, an application, H.R.C. No.4729 of 2011, filed by another individual, containing the similar allegations as in S.M.C. No.3 of 2009, and clubbed with S.M.C. No.3 of 2009, has been disposed of through order dated 05.06.2013, in respect whereof the present note is being rendered.

26. The learned Additional Advocate General, Punjab in support of his claim that the Takht Pari forest consist of 2210 acres and not 1741 acres, has relied upon the Punjab District Gazetteer of the year 1907, the working plan of scrub forest of Rawalpindi for the years 1933-34 to 1952-53 and 1966-67 to 1975-76 and so also of the years 1989-90 to 2019-2020, which show that the total area of Rukh Takht Pari forest is 2210 acres and not 1741 acres, whereas M/s. Aitzaz Ahsan and Ali Zafar, learned ASCs have relied upon the Massavi of the forest, prepared in the year 1956-57, according to which, the area of the forest is 1741 acres and not 2210 acres, as is being claimed by the Forest Department. It is relevant to note here that except for the demarcation that has been carried out in the year 2006, which formed basis of the settlement between the parties, culminating into exchange of land, no demarcation and/or measurement of the forest land has physically been carried out so far. According to the DCO, Rawalpindi, as disclosed by him in his report dated 14.11.2011, it was found impossible to carry out the physical survey and demarcation of the area for the reason, disclosed in the report and, therefore, the demarcation was carried out by the team of the Revenue Department, constituted by it and the Urban Unit Planning and Development Department engaged for the purpose by superimposing the Massavi of 1956-57 on the satellite imagery of the forest. So the entire reliance of the learned Additional Advocate General, Punjab for his claim that the entitlement of the Forest Department in respect of the Takht Pari forest is 2210 acres and not 1741 acres, is on the District Gazetteer of 1907 and the working plans, as noted above. However, the same alone cannot be relied upon for determining the prescribed/designated area of the forest, more so, when on the one hand, the same are inconsistent to and in conflict with the relevant Massavi of the year 1956-57 and on the other, the entries in the said documents are not supported by any actual measurement, done before affecting the same. No field book or any other material has been produced to verify the entries. No record of rights either in respect of Takht Pari forest or any other Mouzahs, surrounding the forest, has been produced, which could have been helpful in determining the area of the forest and the Mouzahs surrounding it, to a great extent. On the other hand, the Massavi of 1956-57 clearly shows the boundaries of the forest. The same has been produced by the Forest Department itself, neither the authenticity or veracity thereof has been challenged by anybody, nor has the learned Additional Advocate General, Punjab alleged any defect and/or deficiency therein.

27. Furthermore, according to M/s. Aitzaz Ahsan and Ali Zafar, the learned ASC, It was in the same year that the above Massavi was prepared and the last land settlement took place i.e. 1956-57, and it is the said settlement, which now forms the basis of all revenue record.

28. In view of the foregoing and more particularly the fact that conflicting and inconsistent documents have been placed by the Government before this Court in relation to the controversy in hand, we find it appropriate that the controversy be left to be resolved by the forums having jurisdiction in and, who also are seized of the matter by way of two suits and a petition, more so, for the reason that a Bench of this Court, consisting of three honourable Members, has in S.M.C. No.3 of 2009, already decided not to make any determination regarding the rights and title of the parties in respect of the subject land and to leave it to the said forums to decide the same after recording evidence. We, therefore, find it appropriate to dispose of the present petition by directing the honourable Judge, seized of the above suits, to decide the said suits as expeditiously as possible and with an expectation that the learned bench of the Lahore High Court would dispose of the writ petition pending before it regarding the exchange mutations, at the earliest. MWA/M-12/SC Order accordingly.