2022 PLP 21 (MLD)

WIQAR AHMAD, J.

Petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, by filing the writ petition with the following prayer; "It is, therefore most humbly prayed that on acceptance of this writ petition, it may please be declared, that the petitioners are entitled to get work order from the respondents, then cut the trees, convert the felled trees into scants or logs, transport the same to timber market under the Khyber Pakhtunkhwa, Disposal of Exploitable Trees of Woodlots Rules, 2017, receive the price of the said timber in the timbers market under the said Rules as owners subject to payment of Rs.45/- per cft. duty to respondent No.1. The respondents may also be directed not to withhold the report and give permission under the Rules to the petitioners issue the work order, cut the marked trees which had already been marked by the respondents Nos.2 to

7. The illegal act of the respondents may please be declared un-constitutional, unlawful, against the law and without lawful authority and be declared null and void on the proprietary rights of the petitioners. The respondents may also be directed to allow the petitioners to cut the marked trees and carried the same timbers to the timbers market." Any other relief which this Hon'ble Court deems fit and proper may also be awarded in favour of the petitioners against the respondents."

2. Petitioners have contended in their writ petition that the land measuring 19 kanals comprising of survey No. 67 had been entered in the name of petitioner No. 17 in the first ever settlement conducted in District Shangla. Same had been in possession of the respective tenants 59 in number, since then. They further contended in their petition that land measuring 142 kanal 09 marlas situated in khasra No. 2733 of Moza Damoray District Shangla had been ancestral property of the petitioners Nos. 1 to 16 and recorded as such in the first ever settlement conducted in the area. Petitioners have submitted applications to respondent No.2 i.e. DFO Forest Shangla, Forest Division at Alpuri under Rule 3 of the Khyber Pakhtunkhwa Disposal of Exploitable Trees of Woodlots Rules, 2017 (hereinafter to as "the Woodlots Rules") for allowing them cutting of trees standing on their respective properties. The applications submitted by the petitioners had further been marked to respondents Nos.9 and 10, but to no avail. Petitioners have also contended that official respondents had granted permission to similarly placed owners, who had accordingly transported their timbers/trees extracted from their landed properties but petitioners were denied the benefit, without any rhyme or reason. Feeling aggrieved from said act of respondents, petitioners have invoked constitutional jurisdiction of this Court by filing the instant writ petition.

3. Respondents were summoned, who have accordingly submitted their para-wise comments. They have stated in their comments that the land in question had been shown as protected forest, being part and parcel of compartment No. 2 Kormang and compartments Nos. 9 and 10 Kana East, according to working plan and GT Sheet Maps of Survey of Pakistan. They have also disputed the entries made in the revenue record in the name of private owners (petitioners herein) in respect of the properties in dispute.

4. Learned counsel for petitioners submitted during the course of his arguments that petitioners had been recorded as owners in respect of the property for demarcation of which they had applied to the concerned revenue officer and for allowing them to cut trees therefrom they had applied to the concerned forest authorities under the Woodlots Rules. The learned counsel further added that "land owner" has been defined as a person recorded as owner in the first settlement. In this respect, he referred to subsection (25) and subsection (42) of section 2 of the Khyber Pakhtunkhwa Forest Ordinance 2002. He further stated that through Rule (3) of the Woodlots Rules a complete mechanism had been provided for cutting of trees by an owner of a land and that refusal of the respondents thereof had not at all been justified. In support of his assertions he also placed reliance on earlier judgment of this Court given in the case of "Gujar Khan and 3 others v. Government of Khyber Pakhtunkhwa and 3 others" reported as 1996 CLC 1447.

5. Learned Additional A.G. appearing on behalf of respondents submitted in rebuttal that petitioners have brought a claim against forest lands, which have been so documented in the record of survey of Pakistan and squarely lies in forest compartments. He added that a strong factual controversy has been existing in the case in hand which could not be resolved in the instant proceedings.

6. We have heard arguments of learned counsel for petitioners, learned Adll: A.G. appearing on behalf of official respondents and perused the record.

7. Before application of the Woodlots Rules it has to be ascertained that the property, wherefrom cutting of trees, is sought by an applicant, has not been falling in protected, reserved or guzara forests. This is itself clear from definition of "woodlot" given in clause (h) of section 2 of the Woodlots Rules, which is reproduced hereunder for ready reference; " "Woodlot" means and include all individually or jointly owned coniferous tree stands that are not part of any reserved, protected and guzara forests or covered by any working plan and consist coniferous trees of harvestable dbh, available for harvesting in accordance with the silvicultural principles. There has also been other conditions like it should not be covered by any working plan and consisting of coniferous trees of harvesting, available for harvesting in accordance with the silvicultural principles. Rule 3 of the Woodlots Rules starts with the words "owner of the woodlots shall submit an application for harvesting of woodlots". It is therefore quite clear that an application can only be considered when the forests sought to be cut, comes in the definition of woodlot as provided in clause (h) of section 2 of the Woodlots Rules.

8. Respondents have stated in their comments that the land in question has been shown as part and parcel of protected forest compartment No. 02 Kormang and compartments Nos. 9 and 10 Kana East, in the working plan and GT Sheet Maps of Survey of Pakistan prepared during 1964-65, and that same had wrongly been entered as private property in the revenue record. This has been the reason, due to which applications of the petitioners have been dismissed.

9. Before granting the relief as prayed for in the instant writ petition the following questions are required to be settled; (a) Whether the land in question as well as the trees standing thereon had been part of protected forest. compartment No. 2 Kormang and compartments Nos. 9 and 10 Kana East, or it had been privately owned property of the petitioners? (b) Whether entries in respect of protected forest entered in a working plan or GT Sheet Maps of Survey of Pakistan has to be given precedence or entries in the revenue record has to be given precedence over the former? Discussion on the second question would be academic in nature unless the first question is answered with precision. The first question cannot be answered without determination of a factual controversy after recording of evidence. Such an exercise cannot be undertaken in constitutional jurisdiction of this Court. Hon'ble Supreme Court of Pakistan in a good number of judgments has held that determination of factual controversy was the job of civil Court and such an exercise could not be carried on, in writ jurisdiction of High Court. In this respect, reliance may be placed on judgment rendered in the case of "Ahmad Developers v. Muhammad Saleh" reported as "2010 SCMR 1057" wherein the Hon'ble Court had recorded the following observations; "Contest on factual controversy could only have been determined through a civil suit and not in constitutional jurisdiction before High Court. Such plea of private respondent was repelled in circumstances. Leave to appeal was declined." Further reliance in support of said ratio may also be placed on judgments in "Suo Motu Case No. 13 of 2007" reported as "PLD 2009 Supreme Court 217" and the case of "Sardar Naseer Ahmad Mooiani v. Chief Executive/Chief Secretary Government of Balochistan Quettta" reported as "2007 SCMR 105". The questions involved in instant constitutional petition are also factual in nature and cannot be determined without recording of evidence. The instant constitutional petition was therefore found not maintainable and same is accordingly dismissed. MH/204/P Petition dismissed.