2016 PLP 1069 (YLR)

MUHAMMAD YOUNIS THAHEEM, J.

Muhammad Khalid Qureshi, petitioner, qua Chairman, Joint Forest Committee, Lunge Jhamra Managuchha, Tehsil and Distict Mansehra seeks the constitutional jurisdiction of this Court and praying that:-- "It is, therefore, most humbly prayed that on acceptance of instant Writ Petition: - a. The impugned order No.Nil/GB (C-1-21) dated Abbottabad the 16.05.2014 of the respondent No.2 may please be declared as wrong, illegal, against the law and facts, arbitrary, fanciful, perverse, without lawful authority, void ab-initio and result of colourful exercise of powers. b. The respondents be directed to treat the petitioner in accordance with the law, rules and regulation as well as Constitution by protecting the rights of the petitioner as enshrined in the Constitution of Islamic Republic of Pakistan, 1973. c. As an interim relief the operation of the impugned order dated 16.05.2014 be suspended and the respondents be restrained to recover the fine amount mentioned in the impugned order till the disposal of main writ petition. d. Any other writ, order or direction which is deemed appropriate in the circumstances of the case may please be passed/ issued."

2. The brief and essential facts leading to the present petition are that in pursuance to the Policy of the Provincial Government regarding 'Management of Private undemarcated Wood Lots in Hazara', issued vide Notification No.SO(TECH)/ENVT/V-401/2002/886 dated 30.11.2002, a meeting dated 05.05.2011 was held in presence of the Divisional Forest Officer, Siran Forest Division, Mansehra and Communicity Development Officer, Siran Forest Division, which was chaired by Muhammad Khalid Qureshi, the present petitioner, wherein, the owners of Khasra Nos. 1455-424-1460-1462-1420-1427-1436-1434-1445-1576-1590-1751-1589 - 1587 - 1755 - 1749-1757-1759-2025-1756-1447-1822 and 1824 of Mandaguchha, unanimously agreed upon constitution of Joint Forest Management Committee (JFMC) for undertaking harvesting, protection and development activities in the 'wood lots' of aforementioned 'Khasra' numbers. The aforestated JFMC, comprising of five members, was duly approved by respondent No.4 and it was accordingly established and registered for the said purpose. Both the parties entered into an agreement dated 13.12.2011 for carrying out the work (hereinafter called the agreement). Subsequently, the JFMC was allowed by the respondents to carry out the harvesting of marked trees, vide letters dated 18.10.2012 and 23.12.2012 issued by respondents Nos.3 and 4, respectively, as per following details:-- Khasra No. Species No. of trees Volume marked (Cft) 1420, 1462, 1427, 1455, 1424, 1460, 1434, 1445, 1436, 1576 and 1824 Deodar 14 3251 Kail 122 17075 Total 136 20326

3. The JFMC was also directed to maintain proper record and monthly progress report be sent to the Divisional Office. The timber was transported from the forest to the road side depot Mandagucha and thereafter, it was transported to Timber Market, Gohar Abad, Havelian through Transport Pass No.573 dated 25.02.2013 (hereinafter called TP). The petitioner was allowed to transport 488 scants of 'Kail' measuring 1837.10 Cft through the said T.P. However, the respondents later on through Office Order No.281 dated 16.04.2013, informed the petitioner, the Chairman of JFMC that he has violated the relevant clauses 7(A) and 12 of the agreement and instruction mentioned in the Transport Pass and transported timber in excess of TP, as detected by Divisional Forest Officer, Petrol Squad Division, Lower Hazara Circle, Abbottabad vide Circular No.658 dated 11.04.2013 upon which, petitioner was served with show cause notice for committing offence and irregularity but no reply from petitioner was given. Thereafter, the DFO/respondent No.4 proceeded against the Chairman, JFMC namely, Muhammad Khalid Qureshi, present petitioner under the relevant provisions of agreement and found him guilty and per report of respondent No.5 i.e. DFO Petrol Squad for transporting timber measuring 353 Cft in excess.

4. Thus, the DFO / respondent No.4 vide his order No.281 dated 16.04.2013 imposed penalties under Clauses 7-A to 11 of the agreement, and the Chairman of the JFMC was directed to pay Fine of Rs.2,118,000/- five (5) times price of 353 Cft Kail timber "Rs.1200/- per Cft and the timber measuring 353 Cft Kail was confiscated.

5. The petitioner, in view of Clause 21 of the agreement filed an application before respondent No.2 for arbitration and finally, respondent No.2 reduced the amount of penalty to one time amounting to Rs.423,600/- vide order dated 16.05.2014. Hence, this petition.

6. The respondents filed their Para-wise comments to the writ petition, wherein, they controverted the assertions of the petitioner.

7. Valuable arguments of learned counsel for the parties heard and available record thoroughly considered.

8. Perusal of the record would reveal that the claim of the present petitioner was that he had transported the timber from Mandagucha to Timber Market, Gohar Abad through said TP and no excess scant or volume of timber was transported by him and contended that transported timber was in accordance with the terms of agreement.

9. It was argued on behalf of the petitioner that the report of DFO, Petrol Squad after physical inspection and measurement at Gohar Abad Depot was wrong and baseless. It was further argued that the findings of DFO, respondent No.4 vide order No.281 and the findings of the arbitrator, respondent No.2 were based on wrong and mala fide report of respondent No.5, DFO, Petrol Squad. Hence, the said orders are liable to be annulled.

10. It was argued and alleged by the petitioner that the timber so measured by the concerned respondent was already auctioned to one Liaqat Shah and TP was also issued to him for further transportation to Karachi, the respondents have imposed penalty without any legal justification. The said asertions of the petitioner were disputed by the respondents in their Para wise comments and they asserted that no proper record of the timber was maintained by the petitioner and excess timber was transported, which was detected by respondent No.5 after measurement of the timber so transported. 'Table of detected excess transported timber', is as under:-- TP No. & date Species Total timber of TP 573 dated 25.02.2013 Kail No. of Scants Volume (Cft) 488 1837.10 Total 488 1837.10 Detail of timber as per Challan Timber Measured physically Difference between TP and measurement No. of Scants Volume (Cft) No. of Scants Volume (Cft) No. of Scants Volume (Cft) 488 1837.10 489 2190.05 1 353 488 1837.10 489 2190.05 1 353

11. In fact, the controversy pertains to transportation of allowed scants and timber according to TP, allegation of not violating the terms of agreement, the action of respondent No.5 (DFO Petrol Squad) and orders of respondents Nos.2 and 4 are arbitrary, illegal, without jurisdiction, without lawful authority, hence, are liable to be set aside are the facts and allegations, which are extremely intricate questions of facts, which needs recording of pro and contra evidence and is squarely factual controversy. While this Court holds that the order of Chief Conservator has attained finality. In constitutional jurisdiction, this Court would not like to dilate upon the said disputed questions of facts. In this regard, this Court seeks guidance from the judgment of the august Supreme Court of Pakistan in Ghulam Nabi's case (PLD 2001 SC 415) wherein it was held that:-- "It hardly needs any elaboration that the superior Courts should not involve themselves into evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts." In Shamim Khan's case (PLD 2005 SC 792), the Full Bench of the apex Court has observed that:-- "Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutional jurisdiction where the material facts were admitted by the respondent, High Court could interfere." In this regard, reliance is also placed on the case law in 'Muhammad Sadiq v. Ilahi Bukhsh' (2006 SCMR 12) and Watan Party's case (PLD 2012 SC 292).

12. Additionally, the petitioner and the respondents were bound by the terms and conditions of the Agreement, wherein, under Clause 21, every dispute, difference, or question, which may at any time arise between the parties or in respect of agreement or lease of the subject matter shall be referred to the arbitration to Chief Conservator of Forests, KPK, Peshawar and the decision/order/Award of the arbitrator shall be final and binding on the parties. The said arbitrator has already reduced the fine and no discrimination has been made. Thus, the Award/order of the arbitrator being final in nature is binding upon the petitioner and he could not challenge the same in constitutional jurisdiction.

13. Accordingly, for the reasons stated hereinabove, this petition being without merit is dismissed. No order as to costs. SL/407/P Petition dismissed.