1996 PLP 1447 (CLC)

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19. Commercial sales.‑‑(1) Regular commercial sales will be conducted in the forests in accordance with the sanctioned working plans. Fifteen per cent, sales proceeds from commercial sale in Dtr, Swat rind Kalam and fifteen per cent. sales proceeds on concessional rates and quomi contracts in Swat will he distributed amongst the right‑holders. (2) The Divisional Forest Officer will issue a cheque in the name of the Deputy Commissioner for the amount of share of the local inhabitants out of the sale proceeds. The amount will be distributed by the Deputy Commissioner or his representative amongst the right‑holders, and the acquittance roll will be forwarded to the Conservator of Forests on each occasion the payment is made. The Conservator of Forests will maintain the accounts for audit purposes."

3. PATA mainly consisted of States known as Chitral, Dir, Swat and Kalam Area, which acceded to Pakistan. (i) The Forests in Swat were declared State property as under: (Gazette Extraordinary page 193) Government of North‑West Frontier Province Home, Tribal. Affairs and Local Government Department. 15th September,. 1972 No.10/16‑SOTA‑II/72‑1521.‑‑In pursuance of clause (a) of paragraph 3 of the Devolution and Distribution of Property (Dir and Swat) Regulation (Martial Law Regulation No.122), and on the basis of the recommendations of the Dir Swat Land Disputes Enquiry Commission, and in accordance with the directions of the President, the Governor of the North‑West Frontier Province is pleased to order that:‑‑ (a) .. (b) all Forests situated in the former State of. Swat shall be the State property (subject to payment of fifteen per cent. of their income as royalty to the local right‑holders) " (ii) The Forests in Dir were declared State property as under:‑ (Gazette Extraordinary page 167). Government of North‑West Frontier Province Home, Tribal Affairs and Local Government Department. 15th September, 1972. No. 10/16‑SOTA‑II/72‑1$20.‑‑In pursuance of clause (a) of paragraph 3 of the Devolution and Distribution of Property (Dir and Swat) Regulation (Martial Law Regulation No. 122), and on the basis of the recommendations of the Dir -Swat Land Disputes Enquiry Commission, and in accordance with the directions of the President, the Governor of the North‑West Frontier Province is pleased to order that:‑‑ (a) .......... (b) all Forests situated in the former State of Dir shall be the State property (subject to payment of fifteen per cent. of their income as royalty to the local right‑holders)." (iii) The Provincial Government were pleased to issue Notification No.SOFT (FAD) V‑405/77 dated 14‑3‑1977 (Published N.‑W.F.P. Government Gazette, 10th June, 1977) which is as under:‑‑ "No. SOFT (FAD) V‑405/77.‑‑In pursuance of the provisions contained in clause (a) of paragraph 3 of the Dir and Swat (Devaluation and Distribution of Property) Regulation, 1972, and in accordance with the direction of the Federal Government, the Government of the North West Frontier Province, is pleased to direct that‑‑ (a) in Home Department Notification No.10/16‑SOTA‑II/72‑1520, dated 15th September, 1972, in clause (b), for the brackets and words "(subject to payment of fifteen per cent. of their income as royalty to the local right‑holders)", the brackets and words "(subject to payment of royalty to the local right‑holders at the rate of eighty per cent. of the income of Painda Khel and Sultan Khel Forests, and sixty per cent. Of the income of other forest)" shall be substituted; and (b) in Home Department Notification No.10/16‑SOTA‑II/72‑1521, dated 15th September, 1972, in clause (b), for the brackets and words"(subject to payment of fifteen per cent. of their income as royalty to the local right‑holders)", the brackets and words "(subject to payment of royalty to the local right-holders at the rate of eighty per cent. of the income of Buner Forests and sixty per cent. of the income of the other forests)" shall‑be substituted."

4. The Forest Act (Act XVI of 1927) was applied to Chitral, Dir, Kalam, Swat and Malakand Protected Areas by Regulation II of 1974 (20‑5‑1974) alongwith all Rules, Notifications and Orders made or issued under the Forest Act. The provisions of any law, instrument or usage having the force of law corresponding to Forest Act ceased to have effect . Earlier the Forests in Dir and Swat have been declared State property by Notification dated 15‑9‑1972, referred hereinbefore, subject to payment of 15 % of royalty to the local right holders. No settlement of Forest has taken place under Chapter 11 of the Forest Act. The Provincial Government, therefore, per force is managing the Forest: under Chapter IV of the Forest Act and have framed Rules (17‑2‑1976), referred hereinbefore, with Rule 19 for commercial sales in these forests reflecting the 15 % payment of income as royalty to local right‑holders, (Notifications dates 15‑9‑1972), to be paid as 15 % of sale proceeds from commercial sales of Forests in Dir, Swat and Kalam to be distributed amongst the local right‑holders. The words "royalty" and "local right‑holders" have not been explained. The scheme of Forest Act, 1927 does not envisage any provision like the word "royalty" Precisely, this is the most agitated question in Dir, Swat and Kalam and rightly so in absence of Settlement of Forests under Chapter II of the Forest Act. The matter is further confounded by issuance of Notifications dated 14‑3=1977 of the Provincial Government on the purported exercise of powers under MLR

122. The necessary intendment of MLR 122 was and is to determine the State property of Former States of Dir and Swat. On the application of the Forest Act to Dir and Swat by Regulation No.II of 1974 (20‑5‑1974) all other provisions of any law, instrument, custom or usage having the force of law ceased to have effect under section 7 of the Regulation. The Forests are residuary subject out of the ambit of Federal Legislative List and Concurrent Legislative List of the Constitution and, therefore, the directive of the Federal Government as mentioned in Notification dated 14‑3‑1977 will not be within the meaning of A Article 97 of the Constitution of Islamic Republic of Pakistan. The Notifications dated 14‑3‑1977 are in conflict with the Forest Act, 1927 and the N.‑W.F.P. Management of Protected Forest Rules, 1975 (17‑2‑1976) and unless Rule 19 is suitably amended which at present provides 15 % of sale proceeds from commercial sales for distribution amongst the right‑holders but sub‑rule (2) provides cheque in the name, of Deputy Commissioner for the amount of share of local inhabitants out of sale proceeds, the matter cannot be resolved.

5. It (will not be irrelevant to refer to the working Plan for Utror‑Desan Forests (Compartment Utror 1 to 15) of Kalam Forest Division (1985‑86 to 1989‑99) produced by M/s. Abdul Halim and Shah Sanam Khan, Advocates, for the petitioners relatable to the distribution of royalty as appreciated by the Officers in drawing the working plan:‑‑ 1.10. Distribution of royalty: as already mentioned, 60 % of the sale value of forest in Kalam‑Kohistan is paid to the local right‑holders as royalty. Every community gets the royalty of its own forest and further distribution is made among the tribes of every community according to the internal distribution system. Internal distribution for Utrori community prevailing at present is as under:‑‑ The royalty is first divided between two big tribes, Narrat and Darakhel equally. Share of Narrat is then equally divided among three sub‑sects of Narrat and those are Sangerkhel, Langerkhel and Jogarkhel. Share of Darakhel is equally divided among the 4 sects of Darakhel and those are Jalator, Funderkhel, Ushugi and Chara. Distribution among the tribesmen is made on the basis of equal share for each male.. 1.11. People who are not entitled for getting royalty: Those people who came from other areas and were permanently settled in Kala‑Kohistan axe not considered to be the bona fide residents and therefore, they do not get any share in royalty. Families from Kohsitan (Indus Kohistan), Malizai (District Dir), Guhars and other nomadic tribes are included in this group. The person entitled for royalty can sell his share also and after selling his share he is no more entitled to receive royalty. Furthermore, those who have sold their share to other locals of community they are not deprived of the rights other than royalty. They can avail all other rights like grazing, collection of fire wood, free grant of local quota etc. The purchase get only the share of royalty. "

6. The forests in PATA were also dealt with under the Land Reforms Regulations. The Manual of Land Reforms published by the Land Commission, N.‑W.F.P. (31st December, 1976) observes on page 35, "Forest areas are situated mainly in Bahrain, Kalam, Madayan, Mian‑Adam, Bar Swat, Sind Kohistan, Kana, Alpuri and Lilawani. Forests were controlled and managed by the State; but the owners were paid 1 / 10th of the profit", on page 36. "Notwithstanding any decision that may be finally arrived at in respect of the various cases dealt with by the Commission and classification of the property of Badshah Sahib into private property and State property as may be made, all forests, minefields and minerals in Swat whether they originally belonged to the Wali/Badshah Sahib or other people or in any way acquired by them, may be treated as State/Government property. This point about forest has been discussed with the Local Division Forest Officer and he is also of the opinion that lot of complication will arise if forests are not declared as State/Government property. 10 % of the sale proceeds, however, may continue to be paid to the land owners of the village in which these forests are situated. The working plan, at present followed by the Forest Department may continue to be followed; but the Forest, minefileds and minerals may not be treated as private individual including Badshah Sahib/Wali", on page 39, "All forests may be treated as State property except some stray trees growing in cultivated area. It is a common principle that in the case of cultivated areas the. trees go with the land. Except the pasture (Charagahs) and Shikargahs which the Central Government have already declared to be the private property of the Mehtar, all Charagahs, Shikargahs, hills and waste land may be treated as State property; but the existing grazing rights and rights of collecting fuel wood by the people and villagers may not be disturbed. The Charagah, Shikargah etc., already declared by the Central Government to be the private property of the Mehtar will be exempted from this".

7. From the above references, by now it is settled that the Forests in PATA are the State property. The commercial exploitation of the Forests in PATA are controlled by Rule 19 of the N.‑W.F.P. Management of Protected Forest Rules, 1975. The local inhabitants, where the forests are citilated, are to be paid the concessions according to order published in the aforementioned Notification dated 15‑9‑1972. It will be relevant to ref. to Rule 19 of the N.‑W.F.P. Management of Protected Forest Rules, 1975 and the concession can be paid to the local inhabitants besides 15 % of the sale proceeds on "Quomi Contracts": The "royalty" is paid only to the owners of property usually mines etc. which are exploited by Government or any other agency. Since the forests are the State property, therefore, there is no provision of payment of royalty to any person including the so‑called local right‑holders and it will be a concession E to be paid to the local inhabitants who are to be termed as local right‑holders. This is a matter which can be negotiated by the Government or any other agency on behalf of the Government with the local inhabitants of the Forests.

8. The objection that Order 1, Rule 8 of Code of Civil Procedure has not been followed strictly in the proceedings of both the petitions is more of technical nature and subjective. If this rule is upheld in the proceedings of hearing a Constitutional petition then necessarily in the proceedings issues are to be framed and evidence is to be recorded on the issues and thereafter judgment delivered by and under the Code of Civil Procedure. This was never the purpose of the judgments, hereinafter referred, for the application of Code of Civil Procedure in the proceedings of hearing the Constitutional petitions. Since no rules have been framed, therefore, the nature of proceedings being civil the provisions of section 141 of the Code will apply as far it can be made applicable. In the judgment "Anjuman Araian, Bhera v. Abdul Rahsid and 5 others (PLD 1973 Lahore 500), a Division Bench while hearing Letters Patent Appeal in the circumstances of the case observed that if Anjuman wanted to file writ petition then it will be proper procedure to obtain the leave of the Court under Order I, Rule 8, C.P.C. Earlier in the judgment "Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223), although delivered under Article 98 of the 1962 Constitution, the august Supreme Court of Pakistan ruled that, "The. right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise". In another case "Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) the august Supreme Court of Pakistan held that the High Court apart from its powers to correct errors apparent on face, of record in exercise of its inherent jurisdiction has power under C.P.C. to review its order made in exercise of its writ jurisdiction. The rule in this respect was further laid down that if the proceedings involve the assertion or enforcement of a civil right then it is a civil proceeding and the provisions of the Code other than the specially excepted ones; shall apply in the exercise of High Court's jurisdiction in a civil matter whatever may be the nature of that jurisdiction. There is no need further to dilate upon the intricacies of procedure in hearing the writ petition and it will be sufficient to observe that even one local inhabitant of the Forest can maintain the Constitutional petition to secure his rights, if there is no other adequate and efficacious remedy available to the person. There is force and substance that contracts and its legal obligations need not be decided by this Court in the Constitutional jurisdiction as the same can be settled by Courts of ordinary civil jurisdiction after recording evidence in the C matter and passing appropriate decrees. It is' observed that the payment of concessions to the local inhabitants is to be paid according to sub‑rule (2) of Rule 19 of the N.‑W.F.P. Management of Protected Forest Rules, 19.75, therefore, there is no need of delivering a judgment on these two objections at this stage.

9. The Parliament or the Provincial Assembly cannot provide law to DATA. The Executive Authority of the Federation and of the Province is seriously challenged in PATA. The politicians and other interested influential persons in PATA are more concerned with their own personal gains at the cost of inhabitants of PATA beside drum‑beating on religious slogans, unleashing Holy Terror in PATA by self‑proclaimed custodians of religious laws. In this melee it is doubtful that the writ of this Court in PATA will be efficacious remedy and curb the manifest illegalities perpetuated in PATA. It is observed D that the commercial sale of the Forest produce in PATA is grabbed by influentials in PATA who can score their own illegal gains in concert with the politicians. The local inhabitants of PATA rot in their own stew. The Provincial Government is well advised to act in accordance with the Forest Act (XVI of 1927) and the N.‑W.F.P. Management of Protected Forests Rules, 1975 and distribute the sale proceeds amongst the local inhabitants in accordance with the procedure provided in the Forest Act and Rules framed there under, by suitable amendments in the Rules, if need be, as indicated in para.4 and para.7 of the judgment. With this observation this petition (W.P. 225/95) and W.P. No.488/94 Mutabar Khan v. N.‑W.F.P. Forest Development Corporation are disposed of. A.A./1932/P Order accordingly.