2023 PLP 236 (YLR)

JAWAD HASSAN, J.

Through this single judgment, I intend to decide this writ Petition as well as connected Writ Petition No.1779 of 2022 titled as "Gul Akbar Khan v. Pakistan Railways etc." as same question of law and facts is involved in both the cases.

2. The Petitioner through this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") has sought direction to the Respondent/ Pakistan Railways to protect the Petitioner's right being successful bidder in the auction of cutting trees; and to restrain officials of Forest Department from implementing actions which are not warranted under the law. (I) CONTEXT

3. Brief facts of the case are that the Respondent No. 2 / Divisional Superintendent, Pakistan Railways, Rawalpindi published an advertisement for auction of dead and wind fallen trees in Section AIOW/FJG and auction was conducted on 14.02.2015. The Petitioner participated in the said auction and was declared as highest bidder with Rs.67,31,000/-, pursuant to which he deposited sum of Rs.2,75,000/-. In the meanwhile, a dispute arose between the Pakistan Railways and the Forest Department regarding ownership of open land on both sides of the Railway Tracks as to who had the right over the trees planted thereon. Thereafter the Respondent No.1 issued letter No.330-W/ 33 / RWP / Pt-II / 15 dated 04.08.2015 directing the Petitioner requiring him to deposit the remaining bid money within seven days with warning that otherwise the amount already deposited shall be forfeited. The Respondent promised that Railway Staff will accompany the Petitioner for cutting of trees, but they did not extend help and the officials of the Forest Department did not allow him cutting of trees. During pendency of this Petition when the Respondent/Pakistan Railways re-auctioned the trees in favour of one Aurangzeb Khan, the Petitioner filed Second Writ Petition No.1779 of 2022 for protection of his rights. (II) PETITIONER'S SUBMISSIONS

4. Sh. Zameer Hussain, ASC submits that the Petitioner participated in the auction and was declared as highest bidder, consequently, he had deposited sufficient amount as well as was willing to perform his part of obligation. He adds that the Petitioner tried from pillar to post for protection of his rights, but all in vain. Learned counsel further submits that valuable right has been accrued in favour of the Petitioner which cannot be taken away at belated stage. He further submits that the Forest Department has no locus standi to restrict the Petitioner from cutting trees belonging to the Pakistan Railways. (III) RESPONDENTS' SUBMISSIONS Submission by Law Officer (Forest Department)

5. Conversely, learned Law Officer controverted the arguments advanced by the learned counsel for the Petitioner and objected to the maintainability of this Petition on the ground that factual controversy is involved in the matter and the Petitioner has not challenged any order. He also submitted that the Forest Department never claimed ownership of land rather admits that the ownership rests with Pakistan Railways, whereas the Forest Department has proprietary rights over trees. He adds that being owner of trees over land of Pakistan Railways, the Forest Department is competent to dispose off the same, therefore, the auction held by the Pakistan Railways is against law and rules. Submission by Ms. Farzana Aziz, Advocate for Pakistan Railways

6. Ms. Farzana Aziz, Advocate for Respondent/Pakistan Railways submitted that Forest Department have no concern whatsoever with the trees proposed for auction because the same were planted by the Pakistan Railways on its own land and the said land was not handed over to Forest Department for plantation of trees, therefore, they have no right of interference with the same. She further stated that under clause 24.6 of Pakistan Western Railway Way and Works Manual, 1969 (the "Works Manual") the Assistant Engineer has mandate to grant approval for cutting of trees. She added that clause 24.8(a) of the Works Manual also empowers the Pakistan Railways to auction trees grown along railway track. She averred that the Petitioner neither deposited the bid amount nor cut down the trees despite of notice/letter No.330-W/33/RWP/Pt-II/15 dated 04.08.2015 directing him to do so within seven days, therefore, re-auction was held.

7. Heard Record perused. (IV) DETERMINATION BY COURT

8. From perusal of record reveals that Respondent No.2/Divisional Superin-tendent, Pakistan Railways, Rawalpindi published an advertisement for auction of dead and wind fallen trees in Section AIOW/FJG and auction was conducted on 14.02.2015. The Petitioner participated in the auction and was declared as highest bidder with Rs.67,31,000/- and he deposited sum of Rs.2,75,000/-. In the meanwhile, a dispute arose between the Pakistan Railways and the Forest Department regarding ownership of trees, but Respondent No.1 issued letter No.330-W/ 33/RWP/Pt-II/15 dated 04.08.2015 directing the Petitioner to deposit the remaining bid money within seven days with further warning that otherwise the amount already deposited shall be forfeited, which remaining bid money was not deposited and during pendency of this Petition the Respondent/Pakistan Railways re-auctioned in favour of one Aurangzeb Khan, whereupon the Petitioner filed Second Writ Petition No.1779 of 2022 for protection of his rights. It all shows that the Pakistan Railways did not resolve the issue of ownership of trees with Forest Department and straightway re-auctioned the same trees in hasty manner for which the Petitioner's right have been accrued through bidding process.

9. When confronted what is locus standi of Forest Department in the light of Clauses 24.6 and 24.8(a) of Works Manual, which empowers the Pakistan Railways for auction of trees, learned Law Officer and Abid Kokab, SDFO, Fateh Jang, Attock have no answer to it. For ready reference Clauses 24.6 and 24.8(a) are reproduced as under: 24.6. Accountal of trees The Inspector of Works should maintain a register of all trees planted in his jurisdiction. All trees shall be serially numbered. No tree shall be cut down without the personal approval of the Assistant Engineer. 24.8. Disposal of natural produce (a) All dead mature shisham trees when felled should be sent to the Carriage and Wagon Depot, Lahore for railway use. It may not be economical to remove the trees grown along railway track to the nearest station for dispatch and such trees may be auctioned with the personal sanction of the Divisional Executive Engineer. Other dead trees fit for firewood and loppings may be sold to staff on cash payment at the rate and scale fixed by the Headquarters Office on the personal sanction of the Divisional Executive Engineer.

10. As regard conduct of auction by Pakistan Railways is concerned, although the Respondent / Pakistan Railways vehemently claimed its ownership upon trees available on railway track(s), but astonishingly the Respondent/Pakistan Railways did not justify re-auctioning of those trees for which the Petitioner has been declared successful bidder and he has also deposited Rs.2,75,000/-. As valuable right of the Petitioner has been accrued therefore, the Pakistan Railways first had to resolve issues of ownership of trees with Forest Department, then had to remove apprehensions of the Petitioner and, thereafter, notice should have been issued to petitioner requiring him to deposit the bid amount. However, in the present case the Pakistan Railways without adopting proper procedure of law and providing security to the Petitioner for cutting of trees has re-auctioned the same trees. The conduct of Pakistan Railways is not sustainable in the eye of law. Reliance is placed on "Major (Retd.) Pervez Iqbal v. Muhammad Akram Almas and others" (2017 SCMR 831), "National Bank of Pakistan v. Messrs Simnwa Polypropylene (Pvt) Ltd. through Chief Executive and 6 others" (2016 CLD 812) and "Ahmad Iqbal v. Ministry of Energy (Petroleum Division) Islamabad and others" (2020 MLD 1849 Islamabad).

11. So far as maintainability of the petition is concerned, the Respondent/Pakistan Railways announced invitation of tender for cutting of trees in accordance with its Works Manual and in response whereof the Petitioner has been declared successful bidder. Thus, any violation of law and unjust and partial practice of the respondents which adversely affect the rights of the citizen for lawful participation of obtaining contracts through general tender would be unconstitutional and the jurisdiction under Article 199 of the Constitution can be invoked in such cases. Therefore, keeping in view the dictum laid down in the judgment cited by the learned counsel for the petitioner in "Sargodha Textile Mills Limited v. Habib Bank Limited" (2007 SCMR 1240) instant petition is held to be maintainable.

12. Article 4 of the Constitution of Islamic Republic of Pakistan clearly states that it is inalienable right of every citizen including Petitioner to be treated in accordance with law by the Respondents and no action detrimental to the reputation, life, and liberty shall be taken except as per law. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, is an established practice that is deep rooted in the custom and usage of law and, therefore, it cannot be overlooked and disregarded by any Court. It is held in judgment reported as "Taj Wali Shah v. Bakhti Zaman" (2019 SCMR 84) that "In fact, any right vested in a person to seek his remedy under the law should be liberally construed, as this would bolster his recognized fundamental right of access to justice." A well-settled principle is reiterated in case titled "Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others" [2014 SCMR 637] reading as follows: "to apply and to adhere to law is not a mere technicality, rather it is a duty cast upon the Court as per Article 4 of the Constitution".

13. Moreover, Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations. Aiming at enforcement of Article 10-A ibid, it has been held in case titled "Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another" (2022 SCMR 1021) reading as follows: "The due process requirement must be met in the determination of rights and obligations. The Constitution does not define due process. Therefore, it would not be appropriate to limit its scope by defining it. But this does not mean that the due process requirement is a meaningless concept. Rather due process incorporates universally accepted standards of justice and is not dependent upon any lawor laws. It is an all-encompassing expression which may not be curtailed with reference to particular laws. Due process is to beunderstood holistically by keeping in mind the entire Constitution, which excludes arbitrary power, authoritarianism and autocratic rule."

14. Therefore, if challenged re-auction of trees is allowed by the Respondent/Pakistan Railways, not only the Petitioner will suffer an irreparable loss and injury, but said act of Respondent/Pakistan Railways will be in utter disregard to constitutional intent to protect fundamental rights of citizens.

15. In view of above, both these writ Petition are disposed of and the matter is referred to the Respondent No.2/Divisional Superintendent, Pakistan Railways, Rawalpindi with the direction to look into it, redress the grievance of the Petitioner by resolving the issue regarding ownership of tree with the Forest Department, in accordance with law, rules, regulations and policy applicable thereto, after providing proper hearing to all the concerned including the Petitioner within a period of one (01) month from the receipt of certified copy of this order. Petitioner shall appear before the said Respondent on 27.10.2022 at 11:00 A.M. SA/G-28/L Order accordingly.