2018 PLP 2051 (SCMR)

EJAZ AFZAL KHAN, J.

Environmental hazard which was reported to be imminent on account of proposed New Murree Project was taken notice of, which found expression in one of the orders passed by his Lordship, as he then was, Mr. Justice Tassaduq Hussain Jillani in the following terms: "The Report of the International Union of Conservation of Natural Resources (IUCN) submitted to the Government and published on the front page in Daily "The News" dated 29th March 2005 makes startling and shocking disclosures about the apprehended adverse environmental impact of the proposed New Murree Project. The findings, if true, warrant serious attention of all those concerned with the conservation of the Forests, Supply of Clear Water to the Twin Cities of Rawalpindi and Islamabad and the issues of siltation in Simly and Mangla Dams. The issues raised are likely to affect public at large with particular reference to the Fundamental Right enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan, i.e. the Right to life . The Patriata Forest according to the afore-referred report has a highly fragile eco-system and was declared as reserved forest as far back as 1886 is going to receive the worst blow i.e. at least 50% of the existing standing stock of 1.4 million conifer trees are likely to be cut. Imploring protection of this valuable forest reserve the report maintains that "the development of new township could result in the catastrophes like loss of protective forest cover resulting in more rapid runoff following storm event; higher peak stream flows; increased instability; and increased sedimentation. "Such adverse changes in watershed hydrologic conditions result in degradation of water quality for the population particularly residing in Islamabad, the report said, demanding, "to avoid such compound disasters and to ensure supply of safe water for twin cities, the valuable Patriata forests have to be preserved." "To develop new city by cutting sharp slope bedrocks will further aggravate the situation for new city and will cause heavy rain siltation in the Simly and Mangla Dams". This move, it is said, would cause serious damage to the ongoing Mangla Dam Raising project, which was approved at a total cost of Rs. 62.552 billion including foreign exchange component of Rs. 9.6 billion. The main objective of the project was to raise Mangla Dam by 30 ft to regain the lost storage capacity due to silting and heavy sedimentation." While the New Murree Project may have been motivated to improve, expand and create recreational facilities at the hill resort in question with regard to which none would have any cavil. However, if such a scheme raises serious environmental questions requiring deliberations by Authorities and Experts concerned and if such a deliberative exercise has not been carried out, this Court is under a Constitutional mandate in terms of Article 184(3) read with Article 9 of the Constitution of Islamic Republic of Pakistan to issue appropriate directions to forestall the likely adverse effects on the quality of life in the areas to which reference has been made in the report. But before proceeding any further it would be fair to issue notice and hear learned Advocate General Punjab inter alia on following preliminary queries:- (i) Whether any environmental impacts survey was ever carried out before approving the New Murree Scheme? (ii) Whether the Government of Punjab has considered the report of International Union of Conservation of Natural Resources, if so what effect? Since the issues likely to be raised would require interpretation of Environmental Laws, it would be appropriate to call upon Dr. Pervaiz Hassan to appear and assist the Court as amicus curiae. Notice shall also issue to Director General, Pakistan Environmental Protection Agency, Islamabad. Let this matter be placed before the Honourable Chief Justice of Pakistan for consideration and constitution of an appropriate Bench. Subject to the order to be passed by him the case shall be fixed before the Bench so constituted for 11.04.2015. Till then no tree shall be felled and no hill shall be tinkered with in Patriata pursuant to the project in question." Following the order reproduced above, many other directions and orders were passed by this Court. In the meantime, WWF prepared an assessment of ecological significance in respect of the proposed New Murree Development Project which being relevant in this case also deserves a look and thus runs as under: The following brief describes the ecological significance of the New Murree Project area and the resulting devastating environmental impacts visualized due to the proposed New Murree Development Project (NMDP). The proposed NMDP propositions the development of Patriata Reserved Forests (Compartments 21 to 38), Murree Tehsil, Rawalpindi District, an area of 4,111 acres, into a 'tourist city of international standards.' Located at the highest point in the Punjab (about 2,223 m), the project area is part of the Himalayan hill tract that includes one of the best remaining Himalayan (temperate) forest areas in Punjab. There are two ecological zones present in the area, the 'moist temperate coniferous forests' (Blue pine or kail zone) and the 'subtropical Chir pine forests' (Chir zone); the former being the dominant zone. Considered particularly ecologically rich, the area boasts the existence or probable occurrence of more than 200 plant species, 146 bird species, 15 mammals, 22 reptiles, and 6 amphibians. The NMDP proposes development projects in the only surviving, intact habitat of the Blue pine ecosystem - the other habitat being badly degraded due to 'its proximity to Murree; this will result in a regrettable fragmentation of this periphery is liable to become swarmed by unplanned housing development schemes, such as those surrounding Bhurban and Murree. As a result, other than the White oak and Yew trees, which are already locally threatened, an additional 17 commonly used medicinal plants will be endangered due to the development operations. The Patriata hill tract has the richest flora to be found in the country. According to a recent study conducted by Pakistan in 2008, a total of 224 vascular plants were identified from the study area, belonging to 166 genera and 71 families. A high proportion of endemic species and, old forests render the area the status of a unique habitat. Since the area contains a very dense patch of the only remaining tract of pine trees in the Punjab Province, it is highly significant in terms of holding a rich diversity of fauna and flora. The Himalayan forest vegetation provides relatively undisturbed habitat for wildlife species, sustaining their needs for food, water and shelter. Any change in the habitat structure will affect the variety and population of wildlife species. Changes in the vegetation structure will definitely affect the wildlife fauna associated with them and, conversely, changes in faunal composition as well as influence the vegetation it is complexly integrated with. Leopards, once reported from the area, are no longer sighted; their disappearance can threat to the already decreasing population Common Leopards in the Murree hills. The Koklass Pheasant, the White-Crested Kalij Pheasant, and the Paradise Flycatcher are some of the unique bird species inhabiting the Patriata forests, which will also be endangered. Natural forests form a vital part of catchments, guaranteeing better quality water with lower levels 20f sediments and pollutants. The loss of forest cover and subsequent conversion to other land usage is rapidly being identified as the major reason for the depletion and contamination of freshwater supplies, aggravating the looming water crisis that is threatening the whole country. Since the concerned area is an integral part of the important watersheds of Mangla and Simly dams, the proposed development plan, which entails large scale decimation of this surviving tract of forest, will have massive negative repercussions. Since much of the remaining catchment area of these dams has already been built up, protection of this region is imperative to guarantee groundwater replenishment along with regulation of water table, and to prevent rapid soil erosion - with consequential silting of water channels and dams downstream, flash floods and landslides. The Government of Pakistan has pledged to preserve and rehabilitate the country's remaining natural forests in a number of policy documents, for example, the National Environmental Policy 2005, that commits to increase forest cover to 5.6% by 2010 and to 6% by 2015. Even the Pakistan Poverty Reduction Strategy Paper (PRSP-2003) makes projections to increase forest cover from 4.8% to 5%. This project is, thus, in direct contradiction with these policies and goals to conserve natural forests. The FAO report, "Situation and Developments in the Forest Sector-2005", mentions that Pakistan is losing forest cover at the rate of 1.5 % each year. This is one of the worst rates amongst the 48 Asian countries that have been listed. The current distribution reveals decline (almost 40%) in the char pine zone, which has been predominantly exploited for agricultural and residential land use, along with a significant decrease (approximately 51%) in blue pine forest compared to estimated forest cover in the past. Pakistan has only 1.8% productive forests out of the total 3.1% existing forest cover. Under these alarming conditions, it is imperative that remaining natural forests in Pakistan, which includes the Patriata forest, must be protected from further degradation. The Project objectives and components have kept changing and have still not been clearly defined or been disclosed to the public. At the time of this report being written, the New-Murree Project included a 6 Star hotel along with other hotels, exclusive housing units, golf course and mono-rail. All these mentioned projects are absolutely inappropriate for a unique ecological area, since the heavy machinery required during construction portends severe damage to the ecosystem. In conclusion, the Punjab Government is advised by WWF Pakistan to abandon the existing New Murree Development scheme, which is completely unsuitable for this unique and environmentally rich region. In its place, the Punjab Government can undertake more suitable ecotourism initiatives, which conserve the unique natural and cultural heritage in Punjab and provide tourist facilitates in conformity with local traditions, for the benefit of all levels of society." Learned ASC appearing on behalf of the petitioner contended that where the orders passed by this Court from time to time and paragraph 4 of the judgment rendered in the case of Suo Motu Case No. 10 of 2005 (2010 SCMR 361) are very clear in their tone and tanner, nobody could have continued with the work of construction and that any work done in contravention of the orders of this Court is liable to be undone and the persons at the back of such work are liable to be proceeded against and punished. He next contended that the forest which is a source of natural beauty and one of the causes of rainfalls is being exterminated; that the land comprised in shamilat-i-deh cannot be broken up for cultivation or any other purpose which is not envisaged by the wajib-ur-arz; that taking possession of a few chunks of land comprised in shamilat-i-deh would amount to partition which is not only against the provisions of wajib-ul-arz but also against the enactments passed from time to time and the rules made thereunder. The learned ASC maintained that the property comprised in individual proprietary could be used as a building site if an NOC is issued in conformity with section 12 of the Punjab Environmental Protection Act 1997. The learned ASC next contended that any waste, sewerage, drainage or any other form of garbage flowing from houses, building, hotels and restaurants thus constructed in the highlands would not only affect the catchment areas but fill them with polluted water. Timely action, the learned ASC added, would be the need of the hour else the land of beautiful landscapes would turn into heaps of stinking dirt. Inaction and acquiescence of the government, the learned ASC went on to argue, facilitated the destruction of the fauna and flora. Simly Dam and Rawal Dam, the learned ASC while winding up his arguments contended would also be the victims of deforestation, construction and consequences flowing therefrom.

2. During the course of arguments, we noticed that a huge property comprised in shamilat-i-deh has been broken up for construction and many other alike purposes in violation of the terms of wajib-ul-arz and the Forest Act 1927. We on our own asked the learned Advocate General Punjab to examine this phenomenon and submit a detailed report in this behalf along with the record of rights, field map and wajib-ul-arz of the respective villages. He accordingly submitted his report along with the relevant record. When we asked him as to how shamilat-i-deh could be broken up for construction etc he could not give any satisfactory answer. We, having realized the gravity of the situation and its adverse bearing on the interest of the government and the environment around, took notice of this aspect of the case and asked the learned ASCs and Sr. ASC of the parties to address us on this issue.

3. Learned Sr. ASC appearing on behalf of Bahria Town contended that any restriction imposed on sale or partition of shamilat-i-deh is violative of fundamental rights; that any such restriction would be void by virtue of Article 8 of the Constitution of the Islamic Republic of Pakistan. He next contended that whether the proposed construction or the construction already completed is against the provisions of the Punjab Environmental Protection Act is a matter pending before the Environment Tribunal, therefore it would not be just and proper to meddle in such matters while exercising jurisdiction under Article 184(3) of the Constitution of the Islamic Republic of Pakistan. He next contended that some restrictions may have been imposed on the owners of the shamilat-i-deh by the wajib-ul-arz but their effect has been neutralized by section 3 of The West Pakistan Land Disposition (Saving of Shamilat) Ordinance 1959. Even otherwise, the learned Sr. ASC added, wajib-ul-arz cannot limit, diminish, curtail or extinguish any right in the land or property without the consent of the owner, therefore, the owner of shamilat-i-deh can partition it or dispose it without the intervention of the government. The learned Sr. ASC contended that where a great deal of construction work has been done, many plots have been transferred and superstructure has been raised thereon following the previous practice, right or wrong, any order of this Court undoing all that has been done would not only create complications but also deprive the persons investing in the project of a right accrued which is not in conformity with the dictum of this Court rendered in the case of Government of Pakistan v. Manzoor Brothers (1995 SCMR 516). The learned Sr. ASC next contended that no exception could be taken to the sale and partition of the property where none of the co-owners in shamilat-i-deh has raised even a whisper in this behalf. Learned Sr. ASC lastly argued that if this Court comes to the conclusion that Shamilat land could not be partitioned, broken-up for construction or any other purpose, any declaration given by this Court cannot operate retrospectively. The learned Sr. ASC to support his contention placed reliance on the case of Application by Abdul Rehman Farooq Pirzada v. Begum Nusrat Ali Gonda v. Federation of Pakistan (PLD 2013 SC 829).

4. Mr. Maulvi Anwar-ul-Haq appearing for Commoners Sky Garden, respondent No.4 herein, contended that area constructed by it falls within the private ownership; that the construction was preceded by issuance of a proper NOC by the Rawalpindi Development Authority ("RDA") and Environmental Protection Agency ("EPA"); that the respondent No. 4 has also become the owner in shamilat-i-deh by the dint of sale but since the proposed construction is carried in the private ownership the arguments addressed at the bar by the petitioner have least bearing on its case. Even wajib-ul-Arz of village Manga, the learned ASC maintained, does not restrict partition of property nor does it recognize any right of the government in the shamilat-i-deh, therefore, his case has to be looked at differently. Learned ASC by referring to clause 4B of the notification dated 21 January 1941 issued under section 76(c) of the Forest Act 1927 contended that it does not tend to impose any restriction on the construction raised by respondent No. 4 when it has neither broken up any area of shamilat-i-deh nor sought partition thereof.

5. We have gone through the record and considered the submissions for the learned ASCs for the parties.

6. Before we deal with the questions raised in these petitions it is worthwhile to see what is wajib-ul-arz, how does it come to being, what role does it play in the administration of shamilat-ideh, what rights does it confer and what restriction does it place on the village proprietary body and what interest the government of the province has in shamilat-i-deh, are the questions to be addressed before any owner of shamilat-i-deh or vendee therefrom can be allowed to go ahead with the breaking up of the land for construction etc. Wajib-ul-arz is a village administration document describing existing customs regarding rights and liabilities of the village proprietary body and the government. This document is an outcome of consensus of the village proprietary body and the government reached at the time of settlement of the village. In the case of Haji Qudrat Ali v. Government of N.W.F.P., through Secretary, Law Department, Peshawar (1993 SCMR 381) this Court in paragraph 10 of the judgment quoted with approval the judgment rendered in the case of Mst. Bhag Bhari v. Mst. Bhagan (PLD 1954 Lah. 356 at 360) dealing with the entries in a wajib-ul-arz held as under: "Entries in a Wajibul Arz may be of two kinds. They may be statements of local custom or usage or they may be recitals of agreements. As statements of custom or usage they are strong evidence of the existence of such custom or usage but they have only an evidentiary value. Agreements incorporated in the Wajib-ul-Arz are however binding but only on the parties to the agreements, and even in such cases it is open to a party to prove that in fact no such agreement was entered into though the task would be difficult." Before we go ahead, let us examine the relevant clauses of the wajib-ul-arz of each of the villages forming subject matter of the controversy in this case. The first in the sequence is the wajib-ul-arz of village Manga which reads as under: Wajib-ul-arz of village Sulkether has identical content which reads as under: Wajib-ul-arz of village Kathar being replica of wajib-ul-arz of the other villages reads as under: The wajib ul arz of village Mangal is also identical in its content and context which reads as under: 12-0 -12 143 -1 -4 10-6-1 2405 -0- -5- 2230-0-14 8 -7-14 A perusal of the relevant clauses of the wajib-ul-arz of each of the villages reproduced above shows that the rights of the proprietary body of the village in shamilat-e-deh are neither exclusive nor unlimited. Their rights in shamilat-e-deh are confined to grazing their cattle etc. and not beyond that. Sale of the property comprised in shamilat-i-deh is not restricted but it cannot be lost sight of that the vendee under no circumstances can acquire a title better than the one the vendor himself has. As wajib-ul-arz of each village provides that any tree small or big growing in ups and downs of the property would vest in the government, such right cannot be extinguished with the sale of the property. Nor can the vendee be allowed to act in derogation of such clauses while dealing with the property. It is in view of this essential aspect that it has been provided in the wajib-ul-arz that shamlat-i-deh could neither be broken up for cultivation nor partitioned without the permission of the government. The rationale behind this recital is to protect the rights of the government on the one hand and those of the owners on the other. This is what has been provided under Rule 4A framed under section 76(c) of Forest Act 1927; that no person shall clear or breakup for cultivation or any other purpose any land in the area reserved as charagaha (Forest and pasture Land) and this is what is provided in rule 4B that no person or persons in any estate shall partition jointly owned lands (shamilat-i-deh) without the sanction of the provincial government. If this property is allowed to be broken up for cultivation or partitioned without the permission of the government, quite obviously, the government would be at the losing end. We do not understand how suitable chunks of land were chosen and taken possession of without having recourse to the legal proceedings and without the permission of the government in gross, grave and glaring violation of the law governing the partition of such land. We do not understand how the trees and bushes running in millions were cut from the shamlat-i-deh and how was it converted into a building site. We also do not understand how the government slept over its rights and sat around like an idle spectator when everything was ruined and run amuck by the Bahria Town or for that matter any other builder without realizing that fauna and flora are better served by the natural growth of trees than the mountains of iron, cement and concrete. Why such sights did not boil the blood of the officials working in the revenue hierarchy, right from the patwari up to the Senior Member Board of Revenue? Why did the officials of the Forest Department, right from the Forest Guard to the Chief Conservator and the Secretary collude with the Bahria Town in its predacious motives and piratical designs? What elevated the Bahria Town and its managers to a level where the nabbing hands of the law enforcers could not reach them notwithstanding all these excesses and atrocities were reported to the NAB. Government land was aggressively taken possession of and lavishly enjoyed by a cabal of land grabbers but those sitting in the chambers of power at every level aided and abetted them as if it is not for them to prevent such acts and that some force from above or abroad would land in to prevent them. It is something terrible because official collusion of this magnitude may not have been experienced even in the nightmare. We against this backdrop would be rather callous and even cruel to see the landgrabbers grab the property and destroy fauna and flora of the area and do nothing to stop, if not break, the hand behind it.

7. Now the question arises how far section 3 of The West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 neutralizes the effect of the wajib-ul-arz as was contended by the learned Sr. ASC for Bahria Town. Before we appreciate this aspect of the case it is worthwhile to reproduce section 3 of the Ordinance which reads as under: "

3. Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.

(1) Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrases of a general nature, purporting to convey rights or interests incidental, contingent, or collateral, to that land, shall not be so construed as to include therein the Shamilat or any portion thereof appurtenant to such land, unless such Shamilat or a portion thereof has been specifically mentioned as the subject matter of the disposition. (2) This section shall not affect any decision of a competent court or authority given before the commencement of this Ordinance:- (a) if it is not open to review, appeal or revision, or (b) if it is so open, no such proceedings have been taken, and the decision has consequently become conclusive between the parties." A perusal of the provision reproduced above shows that the disposition of any land effected by the owner by means of a writing or orally made before or after the commencement of the Ordinance, words or phrase of general nature, purporting to convey rights and interest incidental, contingent or collateral to that land shall not be so construed as to include therein shamilat or any portion thereof appurtenant to such land unless shamilat or portion thereof has been specifically mentioned as the subject matter of the disposition. This section by no stretch of imagination neutralizes the effect of any of the clauses of wajib-ul-arz dealing with shamilat-i-deh nor does it override or extinguish rights of the government in shamilat-i-deh. We, therefore, do not agree with the argument of the learned Sr. ASC for the Bahria Town. The argument that such restriction being inconsistent with the fundamental rights shall be void is devoid of force when the wajib-ul-arz is an outcome of the consensus between the village proprietary body and the government of the province, therefore, neither the village proprietary body nor the government can resile therefrom. This Court in the case of Ghulam Hussain v. Allah Baksh (1991 SCMR 1386) while interpreting section 3 of the Ordinance, has already held as under: "As regards the three last cases, it may be noted that these related to share in the shamilat. In the first one it was held that since plaintiffs did not base their claim upon any right as proprietors of any land assessed to land revenue, they were not entitled to the share in the shamilat. This was in view of the fact that only land holders had/have any right in shamilat. The Ordinance I of 1959, however, envisaged that even if land-holding is sold it will not be taken that Shamilat rights have also been sold unless specifically so stated: The right in Shamilat was no more contingent on land holding. The reasons may be that the legislature took into account the fact that because of drought or famine, a landholder may sell his land, go away to any other place or in the neighbourhood for livelihood and still retain his cattle and graze them in the old pasture of shamilat, or, that he was not to be ousted from the community by depriving him of his share in the shamilat. Reasons may be diverse but it is clear that the Ordinance recognized two rights independently of each other and not contingent, i.e. right in the land proprietorally held a right in the shamilat land. The second case too, is based on contingency of land holding for share in shamilat and if the former is lost by adverse possession the latter is also lost. But this too is prior to the Ordinance. In the third case, the right was lost because from cause of action suit was not filed within limitation."

8. The argument that where wajib-ul-arz of village Manga does not restrict partition of property nor does it recognize any right of the government in the shamilat-i-deh, therefore, the case of respondent No.4 has to be looked at differently is not correct as the wajib-ur-arz of village Manga clearly provides that the property comprised in shamilat-i-deh would not be broken up for cultivation or any other purpose nor would it be partitioned without the permission of the government. Rules 4A and 4B of the Rules of Guzara lands or forest and waste lands of Murree and Kahuta Tahsils, other than Reserved and Protected Forests under section 76 (c) of the Act XVI of 1927 as mentioned-above also provide similar restrictions. The argument that where a great deal of construction work has been done, many plots have been transferred and superstructure has been raised thereon following the previous practice, right or wrong, any order of this Court undoing all that has been done would not only create complications but also deprive the persons investing in the project of a right accrued which is not in conformity with the dictum of this Court rendered in the case of Government of Pakistan v. Manzoor Brothers (supra) has not impressed us as the departure from the rules has its origin in collusion rather than practice. Needless to say the one or any number of wrongs cannot make a right. The case of Government of Pakistan v. Manzoor Brothers (supra) being distinguishable on facts and law has no relevance to the case in hand. The argument that if this Court comes to the conclusion that Shamilat land could not be partitioned, broken-up for construction or any other purpose, any declaration given by this Court cannot operate retrospectively has also not impressed us when everything in this case appears to have been done collusively. The judgment rendered in the case of Application by Abdul Rehman Farooq Pirzada v. Begum Nusrat Ali Gonda v. Federation of Pakistan (PLD 2013 SC 829), too, has no relevance to the case in hand when the controversy as to the rights of the owners in shamilat-i-deh has already been set at rest by this Court as back as 1991 in the case of Ghulam Hussain v. Allah Baksh (supra). The argument that no exception could be taken to the sale and partition of the property where none of the co-owners in shamilat-i-deh has raised even a whisper in this behalf is also devoid of force because the interest of the co-owner in shamilat-i-deh is not exclusive and unlimited as held above and that no property comprised in shamilat-i-deh could be partitioned without the permission of the government and without having recourse to the legal proceedings under the relevant law.

9. As a sequel to what has been discussed above, we have no hesitation to hold that any area of shamilat-i-deh broken up for cultivation or any other purpose, partitioned, taken possession of or constructed in violation of the wajib-ul-arz and rules 4A and 4B of the Rules mentioned-above, being illegal and unlawful is of no effect. The area thus broken up, partitioned, taken possession of or constructed be retrieved by the government forthwith. All construction work in shamilat-i-deh be stopped forthwith. The construction work carried in private ownership would continue only if it is okayed by the RDA and EPA. The persons and officials of the revenue department be proceeded against. 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.

10. If at all a great deal of construction work has been done on the property comprised in shamilat-i-deh, plots have been transferred, superstructure has been raised thereon and third-party interest has been created therein, a spade would remain a spade and an illegal act would remain illegal. However, the questions what to do with the allottees, how to deal with their cases and what remedial measures could be taken in this behalf shall be dealt with by the implementation Bench. We, therefore, request the Honourable Chief Justice of Pakistan to constitute an implementation bench in this behalf to deal with the questions mentioned above. It is, however, added that the Provincial Government and the Forest Department would take care of the areas of the Shamilat-i-deh to develop it by afforestation and reforestation.

11. For the reasons discussed above, Criminal Original Petitions Nos. 57 of 2015 and 42 of 2017 in Suo Motu Case No. 10 of 2005 as well as Criminal Misc. Applications Nos. 1879 of 2016, 1292 to 1293 and 1926 of 2017 in Criminal Original Petition No. 57 of 2015 and C.M.A. No. 6998 of 2017 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 paragraphs 9 and 10 of the majority judgment. Sd/- Ejaz Afzal Khan, J Sd/- Maqbool Baqar, J Sd/- Faisal Arab, J MAQBOOL BAQAR, J.

The above criminal original petition was filed by the petitioners alleging contempt/violation of judgment of this Court rendered in Suo Motu Case No.10 of 2005 on 31.7.2009.

2. The above Suo Motu proceedings were initiated with regard to environmental hazard that was apprehended as a result of the development/ construction of New Murree Project in compartment Nos.21 to 38 of Patriata reserve forest, Tehsil Murree, District Rawalpindi over an area of 4111 acres. Various orders were passed, and several reports were submitted during the pendency of the above proceedings. However on 28.7.2009, this Court was informed that the New Murree Development Authority has been dissolved and the New Murree Development project has been disbanded. The Court thus raised the following two queries for the official representatives appearing in Court to respond to:- (1) Why the New Murree Development Authority has been dissolved? (2) What measures the Government of the Punjab has taken to ensure that in future no project detrimental to the environment would be launched? In response to the above, the Secretary Environment appeared before the Court on 31.7.2009 and submitted that NOC for Environmental Impact Assessment (EIA), was never issued by the Government of Punjab because the environment department was not in favour of New Murree Development Project. He submitted a statement enumerating various measures enforced, to protect the environment in and around Murree. The following of the said measures may be found relevant for the present purpose:- "(ii) All kinds of construction and development activities are banned in these areas. (iii) Across the board application of sections 12 and 16 of the Act is being ensured in these areas. The District Officer (Environment) Rawalpindi has been directed to carry out effective monitoring of these areas. (iv) All kinds of development activities are banned along both sides of Murree Express Way. (v) No construction allowed within 100 meters along both sides of Murree Express way. (ix) Proponents of thirteen (13) properties i.e. M/s. Moin and Jan Associates, M/s. Quality Apartment Phase-II, M/s. Tourism Development Corporation of Punjab, Awan Market, Abbasi Market, Gulistan Market, Raja Hafeez Market, Al-Khair Market, Ajmal Market, Raftar Abbasi Market, Saad Market and M/s. Hakas (Pvt.) Ltd. are being proceeded against under section 16 of the Act ibid (Environmental Protection orders have been issued to them). (x) One proponent Messrs Judicial Town (Housing Scheme) has been summoned for hearing under section 16 of the Act ibid, whereas Messrs Commoner garden, Messrs Husnain Resorts-I have been advised to restrain from carrying out any constructive/ development activity and obey environmental laws." This Court after narrating the relevant facts and incorporating the relevant portion of various reports submitted during the proceedings, and keeping in view the above reports and assessment, and particularly assessment of ecological significance prepared by WWF, whilst holding that there was no probability of the revival of the project, disposed of the above proceedings through judgment dated 31.7.2009 in the following terms: "

7. It is important to note that in view of the above reports including a comprehensive assessment of ecological significance report prepared by the WWF, there was no probability of the revival of the project. At the time when the project was started, the apprehension of the environmental experts was that nearly 4000 trees (one per cent of the total tree population of the area) would be affected by the aforesaid project, which, in turn, would adversely affect the Patriata Forests, which were responsible for boosting high average of rainfall anomaly in the country (around 1.77 millimetre) as it was situated in the catchments area of simly and rawal dams, which provides drinking water to almost half of the population of Rawalpindi and Islamabad. It is noteworthy that all over the world national parts are developed to preserve flora and fauna facing threat of extension in the wake of modern-day-life development projects including mushroom growth of housing projects, recreational facilities, etc. The need is to sensitize the general public to the fundamentals of sustainable development so as to achieve the goal of a healthy environment, not only for the present population, but also for the future generations; the concerned agencies of the Government including Environmental Protection Agencies at different levels have a heavy onus to discharge in this regard. The Government of the Punjab, considering the environmental hazard posed by the New Murree Development Project, has taken a right decision in disbanding the same. Since the project has been disbanded and presently there is no threat of environmental hazard in the area on account of the project, no further action is called for in the instant proceedings. The suo motu has fructified and the same is disposed of accordingly."

3. However, through the above petition, the petitioners, namely, Muhammad Asjad Abbasi, Muhammad Faiz and Muhammad Imran, alleged that construction is being raised in Mouzah Mengal and Khatar of Tehsil Murree in violation of the above judgment. However the later two did not pursue their petition.

4. Sardar Muhammad Aslam, learned ASC for the petitioner, in order to substantiate the petitioner's claim that the judgment is being violated, referred to paragraph 4 thereof wherein the measures said to have been enforced as contained in the statement of Secretary Environment were incorporated. He submitted that in view of the foregoing no construction work could have been undertaken or continued in the entire Tehsil Murree. Learned counsel emphasised that the construction work is being carried out in the land comprising in Shamalat-e-Deh, which land cannot be broken up for cultivation, or for any other purpose not envisaged by the relevant Wajabul Arz, and that such land can also not be partitioned in violation of the provisions of Wajibul Arz. The learned ASC contended that the subject construction is not only impermissible under the relevant Wajibul Arz, but is also violative of the provisions of Forest Act, 1927 and the Rules framed thereunder.

5. On the other hand, Mr. Aitzaz Ahsan, learned Sr.ASC appearing for the purchasers of the property in Commoners Flower Valley, and on behalf of Bahria Town respectively, submitted that in the first place the purported contempt application is not maintainable as neither is there any order banning or restricting any construction or development activity beyond 4111 acres land of patriata forest, contained in the judgment dated 31.7.2009 of this Court, nor were the proceedings in the Criminal Original Petition No.57 of 2015 related to any land other than the above land of Patriata forest. Learned counsel further submitted that paragraph 4 of the judgment dated 31.7.2009, merely refers to the statement made by Secretary Environment, incorporating the measures said to have been enforced by him to save/avoid environmental degration. Mr. Ahsan further submitted that the perusal of the various measures as enumerated in the aforesaid paragraph make it quite clear that in fact the ban was enforced on carrying out construction without complying with the provisions of sections 12 and 16 of the Pakistan Environmental Protection Act, 1997, and that even otherwise such measures/restriction did not form part of the operative part of the judgment dated 31.7.2009, and therefore the purported contempt application was/is liable to be dismissed. The learned Sr. ASC further submitted that through this contempt petition the petitioner, did not raise any issue pertaining to Shamalat-e-Deh and it was only during the course of arguments that such issue was raised on their behalf. Mr. Ahsan further submitted that contrary to the claim of the petitioners none of the relevant Wajibul Arz placed any restriction on cultivating the land comprising Shamalat-e-Deh, and/or using the same for raising any construction thereon. He submitted that even otherwise the provision of Wajibul Arz did not have the force of law and as defined/described by section 39 of the West Pakistan Land Revenue Act, 1967, "Wajibul Arz" is merely a statement of custom respecting rights and liabilities in the estate, the document has also been so defined by J.M.Douie in his famous book titled "Settlement Manual" in the following words:- "The Wajib-ul-Arz, or village administration paper, should be a record of existing customs regarding rights and liabilities in the estate." He submitted that though it has been recognized that at times Wajibul Arz may be a recital of the agreements, but such status cannot be conferred upon the documents, without their being any proof of its being so, whereas in the present case there is absolutely no proof that the provisions contained in the relevant wajibul Arz are a result of any agreement amongst the village proprietary body and the government, and therefore the same cannot be used to place any restriction on the proprietors of the land constituting shamalat. The learned counsel referred to section 3 of the West Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959, which reads as follows:- "

3. Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.

(1) Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrases of a general nature, purporting to convey rights, or interests incidental, contingent or collateral, to that land, shall not be so construed as to include unless such shamilat or a portion thereof has been specifically mentioned as the subject matter of the disposition." He submitted that the above provisions clearly recognise the right to sell his share by the joint owner in the Shamalat-e -Deh, and thus any restriction on the rights of such owner to alienate or sell his share in the shamalat would be violative of the above provision, and also of his fundamental rights, as enshrined/protected by the Constitution. Learned counsel referred to the specimen form XXXVI, as prescribed under Rule 72 of the West Pakistan Land Revenue Rules, 1968. Such form is titled as "Statement of custom (Wajibul Arz)", and the first heading/item of custom as contained therein reads as follows:- (1) Common land, its cultivation and management, and the enjoyment of the proceeds thereof." Learned counsel submitted that from the very first content of the form prescribed for Wajibul Arz, it can be seen that the common land is certainly cultivatable and there is no restriction on cultivating the same as wrongly claimed. Mr. Ahsan further submitted that the provisions of Wajibul Arz are not the same in respect of all the Mouzahs. He pointed out that in respect of Mouzah `Mengaf, there is no restriction on partitioning shamilat, and in Mouzah `Khattar', there is no Shamalat-e-Deh, whereas the entire land constituting Shamalat-e-Deh in Mouzah `Sallchater' has been transferred and mutated in the name of the original owners thereof according to their respective shares. The learned counsel contended that there is absolutely no basis for the claim that the rights in the Shamalat-e-Deh are confined merely to grazing cattle and no more, as neither the relevant Wajibul Arz nor any law places any such restriction. As per the learned counsel, by curtailing the rights and privileges of the owners of Shamalat-e-Deh and restricting its user, merely as grazing grounds, would remove the distinction between Shamalat-e-Deh, the land comprising therein is individually owned by the residents of the Mouzah proportionately, and the land comprising `Rafah-e-Aam.'. Learned Sr. ASC also submitted that no trees have been cut by his clients in violation of any law, or the contents of the Wajibul Arz and has in fact deposited Rs.20 million with the forest department as 'replenishment charges' and has also planted more than 1.4 million trees in and around its projects. As regards Rules 4-A and 4-B as contained in the notification No.171 dated 19.3.1909, learned counsel submitted that the Rule 4-A does not pertain to Shamalat-e-Deh but is applicable to the area reserved as Chirah Gah, and is thus not relevant whereas Rule 4-B only placed a condition of obtaining sanction of the provisional government before the Shamalat-e-Deh is partitioned. He submitted that such restriction has not been recognized by the relevant law, being the West Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959 which was promulgated long after the above rules. Mr. Ahsan submitted that the said Ordinance, rather than placing any restriction on the sale of Shamalat land, in terms of section 3 thereof, recognises the owner's right to sell his share therein. As per learned counsel the purported restriction imposed through rule 4-B cannot even otherwise be sustained in view of the right to enjoy or use the property as enshrined in Articles 8, 9, 23 and 24 of the Constitution and that in terms of Article 23, a citizen's right to acquire, hold and dispose of property could only be subject to the constitution or any reasonable restriction imposed by law whereas, as noted above, the relevant law, being West Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959, does not place any restriction on the right to sell Shalamat lands. Reverting back to Rule 4-B ibid, Mr. Ahsan submitted that though the said rule requires government's sanction for partition of Shamalat land however there is no rule imposing any penalty on partition without a prior sanction and therefore such sanction can also be granted ex-facto. Non -compliance of the requirement prescribed through Rule 4-B does not call for confiscation or retrieval of the land. More so when partitioning or alienating the shamalat land has been a long standing practise and custom, which as noted earlier is not contrary to the relevant law. In support of his contention, the learned Sr. ASC referred to a document containing details about various projects/buildings situated in Shamalat-e-Deh in Rawalpindi and Islamabad, which contains as many as 28 different buildings, official and private, including public buildings such as public hospitals, colleges, housing societies and also the Rawalpindi Bench of the Lahore High Court, and Shifa Eye Hospital, built on such land. The document also contains a note to the affect that in the various mouzahs in the Potohar region, including Islamabad, 50% of the land comprises Shamalat-e-Deh, and all have been partitioned amongst its owners. The position that emerges from the foregoing is, that the only objection raised on behalf of petitioner, to the subject construction/ development is that such is being done in Shamalat land in violation of the contents of the relevant Wajibul Arz, in as much as, the relevant Wajibul Arz allegedly provides that the land therein cannot be partitioned without the sanction of the government, and that the trees grown within the shamalat land shall be presumed to be owned by the government. In the first place as noted earlier, the document, Wajibul Arz could either be a statement of local custom and usage, or can be a recital of agreements. Since nothing has been placed before us to show that the relevant wajibul arz have been prepared with the consent of the village proprietary body and the government, rather the Advocate General Punjab during the course of his arguments has categorically submitted that the same are not a result of any agreement, we cannot therefore treat the same as agreement, and can only treat them as statement of local custom or usage. Whereas in view of Article 8 of the Constitution any custom or usage or even law, so far it is inconsistent with the fundamental rights conferred by the Constitution, shall, to the extent of such inconsistency be, void. And as noted earlier, contrary to the relevant Wajibul Arz and the rules framed under the Forest Act, which rules have been discussed hereinbefore. The relevant law, being West Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959, which "provides for a uniform interpretation of general expression with regard to dispossession of Shamilat" In terms of section 3, recognizes the right of an owner in Shamilat land to sell his share therein. Furthermore any restriction, either through Wajibul Arz, or any rule, which is inconsistent to or in conflict with the provisions of Articles 23 and 24 of the Constitution are void. In any event rule 4-A ibid, as noted above, has no relevance, whereas Rule 4-B merely requires that the partition be made with the sanction of the government, and as noted earlier, the partition not being contrary to any law, can always be sanctioned subsequently also. The partitioning of the Shamilat land has been in practice since long and as per the documents referred to hereinabove, almost 50% of the land in Potohar region including, Islamabad, comprises of Shamilat and the same has been partitioned amongst its owners, and a number of housing project and buildings, such as the High Court building, Shifa Hospital and Fauji Foundation Hospital, are constructed on such lands. As regard the cutting of the tress, as noted above, Bahria Town claims to have deposited substantial amount towards replishment charges and to have planted a large number of trees in the area. Further more the question of compliance or non-compliance of the environmental laws and as to whether the subject construction/ development is causing any damage to the environment and ecology are sub judice before the Environmental tribunal. In view of the foregoing it would not be just and fair to order retrieval of the subject lands but the issue requires indepth and detailed hearing so that the same be decided after thrashing out all the material aspects of the case, and by keeping in view the relevant law, and its implications, we also need to be mindful of the fact that substantial construction and physical development has already taken place and the government of Punjab has never raised any objection to the utilization of the shamilat land for the purpose as done in the present case, and further according to the AG Punjab none from the village proprietary body raised any objection to the subject construction/development before any governmental authority and thus a large number of people have invested their life long savings and the money they raised through bank loans, in buying properties therein. It would therefore be appropriate that the petition be fixed for further hearing. MWA/M-13/SC Order accordingly.