2016 PLP 2023 (MLD)

HAIDER ALI KHAN, J.

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Sohrab Khan and 17 other petitioners have prayed for the following relief: "On acceptance of the instant writ petition, the orders dated 25.4.2013 and 14.7.2011 passed by Respondent No. 21 and all proceedings conducted by Respondents Nos. 20 and 21 on the application of Respondents Nos. 1 to 15 be declared void, illegal, without lawful authority and of no legal effects. Any other remedy which is just and efficacious may also be graciously awarded though no specific prayer has been made thereof."

2. Brief facts of the case are that the Respondents Nos.1 to 15 filed an application before the District Collector Chitral (Respondent No. 20) against the petitioners and Respondents Nos.16 to 19 for determining the rights of royalty in respect of timber extracted from forests situated in Lawo Nisar, Walingar and Shishi Koh of District Chitral. The application was disposed of by the District Collector Chitral in terms that the Chairman and General Secretary of the Joint Forest Management Committee (JFMC) are empowered to decide the entitlement of royalty holders at the time of distribution of royalty. This order was challenged in appeal by the Respondents Nos.1 to 15 before the Deputy Secretary Home/Presiding Officer Appellate Court, Govt. of Khyber Pakhtunkhwa which appeal was accepted vide order dated 14.7.2011 and the case was remanded back to the District Collector. It would be appropriate to reproduce the relevant portion of the order herein below for convenience sake:-- "After hearing arguments of both the parties, this Court has decided to remand the case back to the Court of D.O.R Chitral with the following directions:--

1. To constitute a commission with the mandate to determine whether the parties besides royalty have anything in common?

2. Whether the respondents are co-sharers in the royalty or other benefits across the river where the petitioners reside.

3. Whether there are other beneficiaries living across the river who are neighbours of petitioners and are getting benefits from the jungle of the respondents.

4. Any other question relevant with the case. On remand of the case, the District Collector, Chitral appointed Naib Tehsildar Chitral as local commission with the consent of both the parties who visited the spot in presence of the parties and submitted his report regarding the above mentioned queries. Respondents Nos.1 to 15 filed their objections to the commission report which were entertained by the District Collector. After examination of the local commission and hearing the parties, the District Collector dismissed the application vide order dated 30.11.2012, the concluding para whereof is reproduced below for the sake of convenience. Being aggrieved, the Respondents Nos.1 to 15 preferred appeal which was once again accepted by the Respondent No.21 vide order dated 25.4.2013 and the case was remanded to the District Collector Chitral with the following observations. "In view of the above discussion, this Court deems it expedient to remand the case once again to the trial Court for constitution of the commission afresh, de novo inquiry and revising of its previous verdict keeping in view the ground realities/scenario. He is further directed to analyze/dissect the evidence afresh and determine the interests of the parties in the disputed property in judicious manner. In the above terms, appeal disposed of accordingly". The petitioners, being aggrieved of the above order of the Respondent No.21, have invoked the constitutional jurisdiction of this Court through the instant writ petition.

3. Arguments heard and record perused.

4. The moot question before us arising out of the arguments is whether or not the controversy in hand falls within the definition of dispute as defined in Article 3 Paragraph 2 of the Settlement of Disputes of Immovable Property (Chitral) Order, 1980. It would be appropriate to reproduce the same section for ready reference. "

3. Definitions.

In this Order, unless there is anything repugnant in the subject or context,

(1) . (2) "dispute" means a dispute relating to the ownership of, or any right or interest in, any immovable property in the former State of Chitral to which any of the following are parties and which did not exist earlier than the first day of January 1930, namely:-- (i) the tenants and the ex-Mehtar of the former State of Chitral; or (ii) claimant landlords and the ex-Mehtar of the former State of Chitral; or (iii) landlords and tenants; and is a dispute,

(a) which had been inquired into by the Commission and in respect of which it had submitted its report, including a dispute in respect of which the Commission had withheld its finding because of a direction issued by the Provincial Government; (b) which was not inquired into by the Commission because of a directive issued by the Provincial Government; (c) which, not being a dispute referred to in paragraph (b), was not inquired into by the Commission; or (d) which may be raised after the commencement of the Order by an individual who could not raise it before the Commission earlier; and (3) .." The parties, eventualities and circumstance categorized above in any dispute within the given definition show that the controversy in the present case do not fall under any category of the disputes in the above mentioned clauses. A careful perusal of the above mentioned Article coupled with Articles 4 and 5 of the ibid Order squarely tell us that all the disputes shall be decided by the Provincial Government or an officer authorized by it in that behalf. The mentioned Articles deal with the determination of certain disputes and it is mandatory for the Provincial Government that such disputes shall either be resolved by the Government itself or by an officer authorized by the Government in that behalf and under Article 5 of the ibid Order, the Provincial Government may appoint as many officers as it deems fit. Thus, it becomes clear that the determination of royalty amongst the rightful share holders in the present case is not a dispute within the contemplation of Article 3 of the Settlement of Disputes of Immovable Property (Chitral) Order, 1980 which is a special law and has been designed to settle certain disputes mentioned in Sub-paras (a) to (d) of the above referred Article. Admittedly, there is a robust and functional legal system in place which deals with the cases of the like nature. Therefore, the Deputy Secretary Home/Presiding Officer Appellate Court (Respondent No.21) has wrongly exercised the jurisdiction not vested in him, hence, the proceedings carried out and the impugned orders passed by him are of no legal effect.

5. In view of what has been discussed above, this writ petition is allowed. Resultantly the proceedings carried out by the lower fora as well as the impugned orders dated 14.7.2011 and 25.4.2013 passed by the Respondent No. 21 are hereby set aside. Parties are directed to approach the competent forum having jurisdiction in the matter. ZC/99/P Petition allowed.