2005 PLP 275 (MLD)

I have considered the respective arguments of the learned Advocates representing the parties and perused the record with my utmost care. A perusal of the provisions contained in the Forest Regulation, amended Act, 1994 reveals that prior to the amendment, the orders passed by the Forest Magistrate were appealable to the District and Session Judge but through amended Act one or more Forest Appellate Tribunal consisting of District and Sessions Judges have been constituted. The relevant section is as under:‑‑ "58. (1) There shall be one or more Forest Appellate Tribunals consisting of District and Sessions Judges and their jurisdiction shall be determined by the Government. (2) Any person aggrieved by any order or judgment made by the Forest Protect Officer, may within thirty days of the commencement of such order or judgment, prefer an appeal to the Forest Appellate Tribunal and its decisions, subject to the provisions of subsection (3) shall be final. (3) Any appeal to the Supreme Court of Azad Jammu and Kashmir from an order or judgment of the Forest Appellate Tribunal shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance grants, leave to appeal. " A perusal of the above provisions of law reveals that Forest Appellate Tribunal consisting of District and Sessions Judges have been designated as Appellate Authority. Thus, it is clear that the District and Sessions Judge in his respective jurisdiction has to exercise the powers as Forest Appellate Tribunal not as Principal Civil or Criminal Court of the District. There is no provision in the Act which authorises the District Judge to delegate his jurisdiction to an Additional District Judge Where the delegatee is expressly empowered by the Statute to sub‑delegate the authority then no objection can be made, otherwise, the proceedings taken, orders made, jurisdiction exercised would be without lawful authority. A reference can be made to a case titled "Karachi Co operative Housing Society Union Limited v. Government of Sindh and 6 others" (1990 MLD 389). A Division Bench of Karachi High Court in para. 19 of the judgment opined as under:‑‑ "

19. We are inclined to hold that if a judicial power or even executive power is conferred by the relevant statute upon a particular named Government functionary; the same cannot be delegated in the absence of express words or necessary implication, as the maxim "delegatus non protest delegare", a statutory power must be exercised only by the body or officer in whom it has been vested, will be applicable." The same view has been reiterated in Imtiaz Gohar's case (1990 MLD 1912). At page 1920 of the report it was opined that three general propositions of law are well‑settled and well recognized:‑‑ (i) if the power given by the statute is personal to the person designated in the statute or the statutory law, the power must be exercised by the person; (ii) in order to enable a person to delegate his powers or functions, there must be an authority express or implied to delegate and that the action taken by the delegated authority when there is no power to delegate goes to the root of the jurisdiction; (iii) judicial authority normally cannot be delegated. There is a direct authority on the point i.e. Mst. Aziza Begum's case (PLD 1962 (W.P.) Lahore 887). A Full Bench of the Hon'ble Lahore High Court considered a similar proposition and interpreted the provisions of the West Pakistan Urban Rent Restriction Ordinance 1959, wherein the District Ordinance 1959, wherein the District Jude was designated as an Appellate Authority for hearing the appeals against the final orders of Rent Controller. An appeal was made over to the Additional District Judge for hearing and disposal. The judgment was challenged on the ground of jurisdictional competence. The petition was accepted and the judgment and order of the Additional District Judge was held to have been passed without lawful authority. In the present case, the District Judge has been designated as Forest Appellate Tribunal who has to hear the appeals as persona designata and is not authorized to sub‑delegate his power to Additional District Judge for hearing of appeals in absence of an express provisions of law. The objection of the learned Advocate that the petition is not maintainable in view of subsection (3) of section 58, is devoid of any force. No doubt an appeal under the said section is competent before the apex Court but in case of total absence of jurisdiction this Court is not precluded from exercising extraordinary jurisdiction. The upshot of the above discussion is that the petition is accepted and the order of the Additional District Judge dated 24‑7‑2003 is hereby declared to have been passed without lawful authority, resultantly the appeal of the petitioners herein would be deemed pending before the District Judge who shall decide the case in accordance with law. A copy of the order shall be sent to the District Judge, Muzaffarabad for compliance. H.B.T./26/AJK Case remanded.