1989 PLP 1756 (CLC)

"All forests except trees standing on cultivated lands, Charagahs, Shikargahs, waste lands, and mines and minerals subject to such concessions to the public which the Government may determine anal especially subject to the following concessions to the Public." (a) Obtain firewood from forests (dry wood): (b) Obtain timber for private use under a permit; (c) Grazing of cattle to be regulated by Government; shall be State property and Respondents 1 and 2 applied to the Deputy Commissioner (Respondent 2) alleging that the petitioner was interfering in their ancestral pastures and forest of Maskoor and he be restrained from the same. The application was marked to Assistant Commissioner, Chitral who marked it to Tehsildar. Chitral with direction to look into it. The Tehsildar passed it on to the Judicial Council directing that the Members should consider the application in the light of previous orders.

10. While the. above application was pending, another similar application came from Gogai etc. to the Deputy Commissioner, Chitral. Same was also sent to the Tehsildar for inquiry and report. 11_ In the meanwhile, the Provincially Administered Tribal Areas Regulation had come into force and both the parties contended before the Tehsildar that Riwaji Courts had no jurisdiction to deal with the matter and it should go before the competent forum.

12. The Tehsildar submitted his report (dated 17‑1‑1982) to the Deputy Commissioner, Chitral and he in spite of objection to his jurisdiction to settle the dispute passed an order to the effect that all parties may graze their persona: animals to the pastures and collect firewood for their personal use free from any incumbarance and without payment of any consideration in cash or kind. Graying of animals by outsiders was not allowed.

13. The petitioner preferred an appeal to challenge the orders of Deputy Commissioner dated 19‑5‑1982 before Respondent No.23 and then before Respondent No.24 in revision petition. Both having failed this petition was filed to challenge the orders on the following grounds:‑ (a) The dispute raised by Respondents 1 and 2 etc. per their applications dated 26‑1‑1980 and 13‑4‑1984 submitted to the D.C.Chitral was of a civil nature. Any dispute of this nature has to be referred under Paragrah 4 (1) of the Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation No.II of 1975 (as amended) to a Jirga constituted under the said Regulation. The Deputy Commissioner has nn jurisdiction or authority to decide the case. The proceedings held, action taken and orders made in consequence of the said application, including the orders of Respondents 23 and 24 are without lawful authority and of, no legal effect. (b) Without prejudice to ground (A), in view of Notification dated 31‑7‑1975. issued by the Provincial Government under Regulation No.II of 1974 by which all forests, Charagahs etc. have been declared to be State property, any concession such as claimed by Respondents 1 to 21 in the forest of Maskoor and the Charagahs has to be determined by the Government. The D.C. Chitral had no powers whatever to pass an order as he did. His order as also subsequent orders passed on the basis thereof are without lawful authority and jurisdiction. (c) The order of the Deputy Commissioner and those of Respondents 23 and 24 were arbitrary and based on misreading of evidence and liable to be struck down on that score.

14. The respondents in their joint written statement have defended the impugned orders contending that they proceed on merits of the case and are not amenable to be examined in writ jurisdiction.

15. Learned counsel for the petitioner has built a case on the grounds mentioned above, arguing firstly that the case being purely of a civil nature required to be handled by a Jirga constituted under Paragraph 4(1) of the PATA Regulation ibid and the Deputy Commissioner had no jurisdiction or authority to decide it. Therefore, his order as well as those subsequently passed on its basis are without lawful authority and have no legal effect. Secondly, he has contended _that by virtue of notification dated 31‑7‑1975 all forests, Charagahs etc. stand assumed by the Provincial Government as State property and the concession claimed therein by the Respondents can only be extended by an order of the Provincial Government and not of the Deputy Commissioner, Chitral.

16. It has not been disputed that it is a case of civil nature. A case of this nature, if it pertains to an area falling within the limits of Provincially Administered Tribal Areas, has to go before a Jirga to be determined in accordance with the provisions of Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No.11 of 1975. Section 3 of the Regulation in this behalf provides:‑ "Notwithstanding anything contained in any other law for the time being in force, all suits by a landlord for arrears of rent or the money equivalent of rent, or for sums recoverable under section 7 of the North West Frontier Province Tenancy Act, 1950 (N‑‑W.F.P. Act (XXV of 1950), and all cases of a civil nature shall, save as otherwise provided hereinafter, be referred to a Jirga constituted under, and adjudicated upon in accordance with, the provisions of this Regulation." A plain look at the above provision will show that the Deputy Commissioner, cannot deal with a civil matter. He has to refer it to a Jirga under section 3 ibid, through at a subsequent stage after the Jirga has drawn up its report it may return to him for consideration and to act under section 10 of the Regulation to record a finding. On his own he cannot proceed to deal with a matter falling within the competence of a Jirga, as envisaged under section 3 ibid.

17. It is clear that the Deputy Commissioner, Chitral did not refer the case to a Jirga. Nor did he reconstitute a Jirga to consider the case. He received the application and marked it to the Tehsildar for enquiry and report and on receiving the report passed an order in accordance with it. Such a course was not open to him to adopt. The matter, as already said, being of a civil character required to be referred to a Jirga under the Regulation aforementioned. Deviation from the same was not permissible.

18. Similarly, the D.C., Chitral will have no authority to deal with the matter if the property be deemed to have been assumed by the Provincial Government through Notification dated 31‑7‑1975, as State property. It was contended that though the property belonged to the Provincial Government, having been assumed vide Notification dated 31‑7‑1975 issued under Regulation No.II of 1974 called the Distribution of Property (Chitral) Regulation, 1974, the D.C. as an authorised officer of the Government was competent to extend the concession claimed therein. In this behalf section 4 of Regulation III of 1974 called the Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 was pressed into service. Relevant part of section 3 reads as under:‑

4. Determination of certain disputes‑‑(1) All disputes referred to in paragraph (a) of clause (2) of section 3 shall be decided by the Provincial Government or an officer authorised by it in this behalf.

19. It is apparent that the dispute could be settled by the Provincial Government as also by an officer authorised by it. That it has not been decided by the Provincial Government cannot be denied because there is no order made by the Provincial Government. There is only an order passed by the D.C. Chitral and the same is under consideration here. The order has been assailed as without authority, contending that the D.C. has not been named as authorised officer to act as such to settle the disputes covered under section 3 of the Regulation.

20. As per the relevant provisions, the D.C. or for that matter any officer could be authorised by the Provincial Government to settle the disputes. But no notification of the Provincial Government has been shown to us, authorising either the D.C. or any other officer to act as authorised officer under the Regulation. On his own, therefore, the D.C. could not assume the role of an authorised officer. It was here urged that the D.C. being a very responsible officer of the Provincial Government the order made by him could be deemed to have been made by the Provincial Government and as such it would not be questionable before this Court or elsewhere as a bar to that effect stood created vide section 10 of the Regulation. We do not subscribe to this view. The decision has to be made by the Provincial Government itself or by an officer authorised by it. A Deputy Commissioner unless authorised cannot be considered to surrogate the Provincial Government to pass an order purporting to operate in the name of Provincial Government. Consequently, we are of the view that the order passed by the Deputy Commissioner is without jurisdiction as also the orders passed by Respondents 23 and 24 on the basis thereof, and we declare them as such. No order as to costs. AA./785/P Petition accepted.