2010 PLP 79 (GBLR)

SYED JAFFAR SHAH, J.

This petition has been directed against the judgment dated 27-5-2008 passed by Single Bench of Chief Court Northern Areas in a Civil Revision bearing No.43/2002, whereby the learned Single Judge has dismissed the Revision Petition filed by the petitioners against the concurrent findings of two Courts below and maintained the judgment and decree dated 18-12-2000 passed by Civil Judge Chilas and upheld by District Judge Diamer.

2. The brief facts leading to the present petition are that the petitioners who are forest lessees engaged timber business in Northern Areas. That under the lease agreement executed between the father of the plaintiffs/petitioners late Karim Bux and forest department Northern Areas, the petitioners were permitted to transport and sale the timber extracted from Hudoor forest to different parts of the country after paying prevailing royalty to the forest department as fixed in the agreement. And in pursuance of lease agreement, forest department issued six treasury challans for the payment of Royalty and other levies at prevailing rate which the petitioners paid accordingly, and consequently the respondents issued transport permits to the petitioners for transportation of timber extracted from the forest on 19-9-1991. The petitioners transported the above timber till 23-7-1992 to down country and sold the same at a lower price keeping in view the charged amount of royalty but the respondent No.5 on 22-1-1994 issued a memorandum directing the petitioners to pay additional royalty amounting to Rs.40,48464 this demand of payment of additional royalty was made by the respondents on the plea that before the transport passes were issued the royalty had been enhanced by 100% as per office memorandum dated 12-9-1991. This demand of the additional royalty led the petitioners to file civil suit in the Court of Civil Judge Chilas and during the pendency of the suit, the petitioners were allowed by the learned lower court to transport the remaining timber extracted from the same forest on payment of additional royalty. The suit was resisted by the respondents through their joint written statement dated 25-10-1995. Wherein the respondents/defendants took the stance that 100% enhancement in the royalty is legal and justified and the petitioners/plaintiffs are bound to pay the additional dues, beside raising preliminary objection.

3. That during pendency of the suit above referred and after issuance of injunction order regarding transportation of remaining timber on payment of 25% royalty on old rates, the forest department refused to issue further transport permits to the petitioners for transportation of timber to down country and demanded 100% enhanced royalty which was challenged by the petitioner in another suit in the same court, and both the suits were consolidated by the Trial Court.

4. That the civil judge Chilas vide judgment and decree dated 18-12-2000 dismissed both the suits, the appeal filed against the judgment and decree of trial Court met with the same fate, feeling aggrieved with the concurrent findings of lower courts the petitioners preferred Civil Revision before Chief Court which was also dismissed maintaining the finding of learned courts below.

5. Mr. Muhammad Issa, learned counsel for the petitioners/ plaintiffs contended that petitioners had transported the timber to other parts of the country as per lease agreement before 19-9-1991 and 100% increase to the royalty was made by the respondents unilaterally and secretly, and admittedly the respondent No.5 i.e. the Divisional Forest Officer himself had received the orders regarding 100% increase in the royalty on 26-9-1991, when the petitioners had completed the process of transportation of timber to down country. He further submitted that the respondents demanded the petitioners to pay 100% enhanced royalty 1st time on 22-1-1994 when they had already transported and sold the timber about three years back. At the fag end of his arguments the learned counsel contended that the orders dated 12-9-1991 whereby 100% royalty was enhanced was not a legal order and it was passed against the spirit of lease agreement executed between parties. He added that royalty cannot be levied/enhanced with retrospective effect.

6. On the other hand the learned Advocate General controverted the above contention and whole heartedly defended impugned judgment as according to him the same is well reasoned and does not warrant any interference. He further contended that enhancement of royalty by the Government is legal one and the same is justified. He stated that increase in the royalty was made by competent authority on 12-9-1991. The petitioners have transported the timber 7 days after issuance of said orders as such question of retrospective effect does not arise in the matter in hand.

7. We have heard learned counsel for the parties at length and have perused the available record with due care and caution, from perusal of documents placed on record. It appears that vide office memorandum dated 12-9-1991 the respondents had enhanced the rate of royalty by 100% which is the bone of dispute between the parties. The relevant portion of the said office memorandum is reproduce as under:- Subject:- Implementation of Decisions taken in meeting held under chairmanship of the Minister for KANA on 7-5-1991. para. 5(1). (e) Necessary orders regarding enhancement of existing rates of royalty by 100% have since been issued. (Sd.) Dost Mohammad Khan Additional Commissioner (General)

8. The above decision regarding 100% enhancement in the disputed royalty was revised by the respondents vide office memorandum bearing No.F-4(3)/89-NA 1, Government of Pakistan Ministry of Kashmir Affairs and Northern Areas Division dated 5/1/1992 which speaks as under: - "The whole issue has been reconsidered in this ministry in consultation with the officers of Northern Areas Administration. It has accordingly been decided that the rates of royalty on timber should be enhanced by 25 % instead of 100%".

9. There is another decision taken by the respondents vide office memorandum bearing No. CFO 5(ii) VOL-II/80-82/93 dated 22-1-94 the relevant portion is reproduced as under:- Subject:- Review of the rates of royalty of timber extracted from Hudoor forest on 100% Enhanced rates. Memorandum: " In continuation of this office memorandum dated 12-5-1992 on the following subject cited above." According to the rulings of Ministry of Law Division, reproduced vide KA/NA Division Islamabad the enhanced rates of royalty shall now be realized from the concerned forest lessee on timber exported with effect from 12-9-1991 to 29-1-1992.

10. A careful perusal of the above referred documents would indicate that respondents have reviewed/reconsidered their earlier decision dated 12-9-1991 regarding enhancement of royalty and have enhanced the rate of royalty on timber by 25% instead of 100% as such the respondents cannot levy 100% royalty on the timber extracted and transported by the petitioners from Hudoor forest. This crucial point has not been discussed by the learned Single Judge in the impugned judgment. The learned Judge has also wrongly held that the petitioners/ plaintiffs have not challenged the vires of the decision regarding enhancement of royalty from perusal of the plaint it appears that the whole case revolves around this point.

11. So levy of 100% royalty on the timber extracted and exported by the petitioners is not justifiable, the same is declared illegal. The respondents may charge the royalty by 25% instead of 100%.

12. The upshot of the above discussion is that the petition is converted into appeal and allowed. The impugned judgment passed by learned single Judge Chief Court dated 27-05-2008, judgment passed by Civil Judge Chilas dated 18-12-2000 and maintained by District Judge Chilas in C.A. No.1/2001 are set aside, consequently the suit No.27/95 and 24/99 decreed on the following terms: (i) The Recovery/levy of 100% royalty and surcharge on the basis of O. M.No.Adm-iii-1(18)/90 dated 12-9-1992 on timber extracted by the plaintiffs from Hudoor forest is hereby declared illegal and void and consequently, the defendants are hereby restrained from effecting recovery of royalty and surcharge at the rate of 100% from plaintiffs. (ii) The plaintiffs are liable to pay 25% enhanced royalty and levy of surcharge vide OM No. F-4(3) 89-NA dated 5-1-1992 on timber extracted by them from Hudoor forest. This petition is converted into appeal and allowed in the above terms with no order as to the costs. M.H./23/Glt. Appeal allowed.