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Petitioner: Moambar VS Respondent: Government of Khyber Pakhtunkhwa through Chief Secretary JUDGMENT
Court Name: Peshawar High Court Judge(s): Ishtiaq Ibrahim, Wiqar Ahmad Title:Moambar vs Government of Khyber Pakhtunkhwa through Chief Secretary
JUDGMENT
Reported As: 2021 PHC 168, 2022 CLC 1605 Result: Petition disposed off Judgment JUDGMENT WIQAR AHMAD, J. This order is directed to dispose of the instant writ petition as well as connected W.P No. 287- M/2016, W.P No. 358-Mi 2016, W.P No. 699-M/2016, W.P No. 353-M/2017, W.P No. 612-M/2019, W.P No. 613- M/2019, W.P No. 880-M/2019, W.P No. 974-M/2019, W.P No. 1245-M/2019, W.P No. 627-M/2020, W.P No. 57- M/2021, W.P No. 166-M/2021, C.R No. 43-M/2015 and C.R No. 103-M/2016, as common questions of law were requiring answers in all these cases. 2. The issues in all these cases had arisen after a Single Member Bench of this Court had decided in its judgment given in the case of Provincial Government of NWFP through Chief Secretary and 5 others vs. Mohammad Razia and 13 others reported as 2017 CLC 908 that jurisdiction of a civil Court to entertain any dispute relating to forest had been barred by Section 92 of the Khyber Pakhtunkhwa Forest Ordinance, 2002 (hereinafter referred to as the "Forest Ordinance") and that such controversy would fall in the jurisdiction of the Forest Settlement Board (hereinafter referred to as the "Board"), which could be constituted under section 5 of the Forest Ordinance for the purpose and tasked with adjudication of such like disputes. In some of the cases, the civil Courts below had rejected plaint under Order VII Rule 11 CPC while in others, it had been returned. In other cases, petitioners have filed their constitutional petitions directly before this Court for issuance of directions to respondents for constitution of the Board for settlement of their disputes. Brief facts of each of the clubbed petitions, relevant for disposal of the petitions, are given hereunder; 3. W.P No. 551-M/2017 (Moambar vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others);
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Petitioner has filed the constitutional petition with the prayer that respondents may be directed to constitute the Board under the Forest Ordinance. Petitioner has also prayed for issuance of direction to respondents for constitution of appellate forum under section 17 of the Forest Ordinance. He has contended in his writ petition that this Court while rendering judgment in the case of Provincial Government of NWFP supra has held that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance but he had been aggrieved of entry of his personal property as protected forest in the revenue record for which the only forum available had been that of the Board, which had been nonexistent. He has accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 and the appellate forum under section 17 of the. Forest Ordinance. 4. W.P No. 287-M/2016 (Shah Zaman Khan vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioner has filed the constitutional petition with the prayer that respondents may be directed to carry out an inquiry under section 29 (4) of the Forest Ordinance in respect of the disputed property. He has contended in his writ petition that the property in dispute had been purchased by him in the year 1978 from one Abdul Matin vide registered sale deed dated 07.03.1978 but said property had wrongly been entered in the revenue record as protected forest. He also contended that despite repeated requests, respondents had not entered his name in the column of ownership in the revenue record and no inquiry under section 29 (3) of the Forest Act had been carried out as well. He further contended that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance, he therefore approached this Court through the instant constitutional petition, with the stated prayer. 5. W.P No. 358-M/2016 (Sarfaraz Khan vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to constitute the Board under the Forest Ordinance. They have contended in their writ petition that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance but they had been aggrieved of entry of their ancestral property as protected forest in the revenue record for which the only forum available had been that of the Board, which had been nonexistent. They have accordingly prayed for issuance of direction to the concerned respondents for conducting inquiry under section 29 (4) of the Forest Ordinance as well as establishment of the Board under section 5 of the Forest Ordinance. 6. W.P No. 699-M/2016 (Kamal Ahmad and others vs. Government of Khyber Pakhtunlchwa through Forest Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to constitute the Board and conduct impartial inquiry under the Forest Ordinance. They have contended in their writ petition that they had been co-owners in the property comprised of Khasra No. 4628 to the extent of 137 Kanals 13 Marlas but said property had wrongly been entered in the revenue record as protected forest. They had also filed a suit for declaration etc in respect of same property but their plaint was rejected under Order VII Rule 11 CPC by the learned civil Court vide its order dated 13.05.2015 for the reason that same had been barred by law and had not been disclosing a cause of action. They were however directed to approach proper forum for redressal of their grievance. In light of that direction, they had filed an application before the Worthy Secretary Forest for constitution of the Board as well as conducting of impartial inquiry under the Forest Ordinance in respect of the property in dispute but to no avail. They have accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 (c) read with sections 29 and 92 as well as conducting impartial inquiry under section 29 (4) of the Forest Ordinance. 7. W.P No. 353-M/2017 (Khan Muhammad vs. Government of Khyber Pakhtunkhwa through Forest Secretary and others); Petitioner has filed the constitutional petition with the prayer that respondents may be directed to constitute the Board and conduct impartial inquiry under the Forest Ordinance. He has contended in his writ petition that he had been owner in the property comprised of Khasra No. 4628 to the extent of 38 Kanals 10 Marlas but said property had wrongly been
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entered in the revenue record as protected forest. He had also filed a suit for declaration etc in respect of same property but the plaint was returned to him by the learned civil Court vide its order dated 24.10.2012 for the reason that jurisdiction of the Court had been barred by Section 92 of the Ordinance. He had also filed an application before the Secretary Forest for constitution of the Board as well as conducting of impartial inquiry under the Forest Ordinance in respect of the property in dispute but to no avail. He has accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 (c) read with sections 29 and 92 of the Forest Ordinance as well as conducting impartial inquiry. 8. W.P No. 612-M/2019 (Rustam Khan and others vs. Government of Khyber Palchtunkhwa through Secretary Forest and others); Petitioners had filed a suit for declaration etc in representative capacity in the Court of Senior Civil Judge Swat to the effect that they had been owners and in possession of the property in dispute (fully described in heading of the plaint) and that defendants had no right to enter it in the revenue record as protected forest. The learned civil Court returned the plaint to plaintiffs (petitioners herein) vide its order dated 20.02.2019 for the reason that jurisdiction of the Court had been barred by Section 92 of the Ordinance in view of the law laid down by this Court in the case of Provincial Government of NWFP supra. Plaintiffs were however directed to approach the proper forum. Appeal filed there- against was also dismissed by the learned appellate Court vide its order dated 09.04.2019. They have thereafter filed the instant constitutional petition and prayed for remanding the case back to the civil Court for decision on merits. They have also prayed for establishment of the Board under the Forest Ordinance, in the alternative. 9. W.P No. 613-M/2019 (Sher Muhammad Khan and others vs. Government of Khyber Pakhtunkhwa through Secretary Forest and others); Petitioners had filed a suit for declaration etc in representative capacity in the Court of Senior Civil Judge Swat to the effect that they had been owners and in possession of the property in dispute (fully described in heading of the plaint) and that defendants had no right to enter it in the revenue record as protected forest. The learned civil Court returned the plaint to plaintiffs (petitioners herein) vide its order dated 20.02.2019 for the reason that jurisdiction of the Court had been barred by Section 92 of the Ordinance in view of the law laid down by this Court in the case of Provincial Government of NWFP supra. Plaintiffs were however directed to approach the proper forum. Appeal filed there- against was also dismissed by the learned appellate Court vide its order dated 19.04.2019. They have thereafter filed the instant constitutional petition and prayed for remanding the case back to the civil Court for decision on merits. They have also prayed for establishment of the Board under the Forest Ordinance, in the alternative. 10. W.P No. 880-M/2019 (Azam Khan and others vs. Government of Khyber Pakhtunkhwa through Forest Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to conduct inquiry or constitute the Board under the Forest Ordinance. They have contended in their writ petition that they had been owners of the property situated in Moza Taal Tehsil Kabal, upon which they had also constructed houses and made improvements. They have also contended that when respondents had started illegal interference in their property they filed an application before respondent No. 3 for establishment of the Board as well as conducting inquiry under the Forest Ordinance but to no avail. They have accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 (c) and conducting inquiry under section 29 (4) of the Forest Ordinance. 11. W.P No. 974-M/2019 (Bakht Zada and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to carry out an inquiry under the Forest Ordinance in respect of the disputed property. They have contended in their writ petition that they had been ancestral owners in the property in dispute to the extent of 2/5 shares but said property had wrongly been entered in the revenue record as protected forest. They have also contended that despite repeated requests, respondents had not entered their names in the column of ownership in the revenue record and no inquiry under the Forest Act had been carried out as well. They have further contended that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance. They have accordingly prayed for issuance of directions to the
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concerned respondents for conducting an inquiry under section 29 (4) of the Forest Ordinance in respect of the suit property. 12. W.P No. 1245-M/2019 (Bakht Zada and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to carry out an inquiry under the Forest Ordinance in respect of the disputed property. They have contended in their writ petition that they had been ancestral owners in the property in dispute to the extent of 2/5 shares but said property had wrongly been entered in the revenue record as protected forest. They have also contended that despite repeated requests, respondents had not entered their names in the column of ownership in the revenue record and no inquiry under the Forest Act had been carried out as well. They have further contended that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance. They have accordingly prayed for issuance of directions to the concerned respondents for conducting an inquiry under section 29 (4) of the Forest Ordinance in respect of the suit property. 13. W.P No. 627-M/2020 (Abdul Ghaffar Khan and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Plaintiffs (petitioners herein) had filed a suit for declaration as well as permanent injunction to the effect that they had been owners and in possession of the property mentioned in heading of the plaint and that it had wrongly been entered in the revenue record as protected forest, which had been concurrently dismissed by the two Courts below. This Court while accepting revision petition filed by petitioners vide its order dated 08.04.2011, had remanded the matter back to the civil Court with certain directions. Thereafter, the learned civil Court had rejected the plaint vide its order dated 29.09.2012 due to lack of jurisdiction. While relying upon earlier judgments of this Court passed in civil revision No. 463/2004 and civil revision No. 17/2011, the learned civil Court had referred the matter to Provincial Government for appointment of the Board under section 5(c) read with section 29 (4) of the Forest Ordinance to inquire into the matter by associating the petitioners. Judgment of the learned civil Court dated 29.09.2012 had not been complied with in letter and spirit by the Government, petitioners had therefore filed an execution petition, which was dismissed by the learned civil Court vide its order dated 15.07.2017 being non-maintainable. Revision petition filed there-against was also dismissed by the learned revisional Court vide the impugned judgment dated 07.11.2019. Feeling aggrieved there- from, petitioners have filed the instant constitutional petition, wherein they have prayed for issuance of directions to the civil Court for deciding the suit on merits. 14. W.P No. 57-M/2021 (Shah Jehan vs. Government of Khyber Pakhtunkhwa through Secretary Forest and others); Petitioner had filed a suit for declaration etc in the Court of Senior Civil Judge Daggar at Buner, to the effect that he had been exclusive owner of the property described in heading of the plaint and that its entry in the revenue record as protected forest had been ineffective upon his rights and had been liable to correction. The learned civil Court returned the plaint to plaintiff (petitioner herein) vide its order dated 07.12.2020 for the reason that jurisdiction of the Court had been barred by Section 11 of the Khyber Pakhtunkhwa Public Property Removal of Encroachment Act, 1977. Petitioner has contended in his writ petition that jurisdiction of the civil Court had been barred by Section 92 read with Sections 5 & 29 of the Forest Ordinance, he therefore approached this Court through the instant constitutional petition. He accordingly prayed for issuance of directions to the concerned respondents for constitution of the Board for conducting inquiry under the Forest Ordinance. 15. W.P No. 166-M/2021 (Umar Muhammad and others vs. Government of Khyber Pakhtunkhwa through Secretary Forest and others); Petitioners have contended in their writ petition that they had been owners of the property in dispute and upon some portion, they had also constructed houses. When they came to know that their property had wrongly been entered in the revenue record as protected forest, they filed an application to respondent No. 1 for establishment of the Board under the Forest Ordinance in respect of their ownership in the property in dispute but to no avail. They have also contended in their writ petition that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 read with Sections 5 and 29 of the Forest Ordinance. They have accordingly prayed for issuance of
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direction to the concerned respondents for constitution of the Board and conducting inquiry under the Forest Ordinance. 16. C.R No. 43-M/2015 (Syed Azim Shah vs. Assistant Commissioner Forest and others); Petitioner had filed a suit for declaration to the effect that he had been owner in the property laying in Khasra No. 748 of the concerned moza to the extent of 25 Kanals but said property had wrongly been entered in the revenue record as protected forest. Petitioner had earlier filed a suit in the Court of Senior Civil Judge_ Swat, which had been proceeded on merits and finally dismissed vide judgment and decree dated 05.11.2009 of the learned civil Court. Said judgment and decree had been maintained upto this Court. He subsequently filed another suit on 03.07.2014 in the Court of Senior Civil Judge, Swat. His subsequent suit was summarily rejected by the learned civil Court vide its order dated 26.07.2014 being barred by law. Feeling aggrieved there-from, petitioner has filed an appeal, which was also dismissed by the learned appellate Court vide its order dated 15.01.2015. He then approached this Court through the instant civil revision, wherein he has requested for setting aside judgments of the two Courts below and prayed for decreeing his suit. 17. C.R No. 103-M/2016 (Ihsanullah and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioner had filed a suit for declaration etc to the effect that they had been ancestral owners of the property comprised of Khasra Nos. 30 & 31 to the extent of 22 Kanals, which had been purchased by their predecessor vide sale deed dated 30.10.1955 but it had wrongly been entered in the revenue record as protected forest. The learned civil Court while relying upon earlier judgment of this Court passed in C.R No. 153/2004, had returned the plaint to plaintiffs due to lack of jurisdiction vide its order dated 04.03.2015. Their appeal filed against judgment of learned civil Court was also dismissed by the learned Additional District Judge-VI, Swat vide his order dated 18.02.2016. Feeling aggrieved there- from, they have filed the instant civil revision, wherein they have prayed for remanding the case back to civil Court for decision on merits. 18. Arguments heard and record perused. 19. We would first like to address the following legal questions arising out of the above reproduced facts; a) Whether the Board provided under section 5 of the Forest Ordinance as a forum for settlement of disputes has been a continuous phenomenon to which any dispute arising at any time may be referred and settled there under or same is relevant at the time when a forest is declared as reserved or protected forest for the first time? b) Whether the bar of jurisdiction contained in Section 92 of the Forest Ordinance would be an absolute bar, debarring any civil suit, wherein certain rights are claimed in immovable property and in defence, it is alleged that the property had ever been declared as protected or reserved forest? (c) What forum would be available to a person whose property is wrongly claimed as reserved or protected forest? 20. Determination of question (a): (Whether the Board provided under section 5 of the Forest Ordinance as a forum for settlement of dispute has been a continuous phenomenon to which any dispute arising at any time may be referred and settled there-under or same is relevant at the time when a forest is declared as reserved or protected forest for the first time? Clause (c) of subsection (1) of Section 5 of the Forest Ordinance has provided for constitution of the Board. Section 5 is contained in Chapter-II (i.e. Reserved Forests) of the Forest Ordinance. Sections 4, 5, 6 & 7 of the Forest Ordinance would be relevant for our present discourse, same are therefore reproduced hereunder for ready reference; 4. Power to declare reserved forest.---Government may declare any forest land or wasteland which is the property of Government, or over which Government has proprietary rights, or to the whole, or any part of the forest produce, of which the Government is entitled, as a reserved forest in the manner hereinafter provided. 5. Notification by Government.---(1) Whenever it has been decided to constitute any land as a reserved forest, Government shall, by notification in the Official Gazette,- a) declare that it has been decided to constitute such land as a reserved forest;
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b) specify, as nearly as possible, the situation and limit of such land by roads, rivers, streams, ridges or other well known or readily intelligible boundaries; and c) appoint a Forest Settlement Board hereinafter referred to as "Board", to enquire into and determine the existence, nature and extent of any rights, alleged to exist in favour of any person in or over any land comprised within such limits or forest produce therefrom, and to deal with the same as provided in this Chapter. (2) The Board shall consist of the following:- i. a Revenue Officer not below the rank of a Collector; Chairman ii. the Divisional Forest Officer concerned; and Member iii. one representative of the community based organization or village-based organization. Member (3) The representative of the community shall be selected by the concerned community. (4) All decisions of the Board shall be taken by majority of votes. 6. Proclamation by Forest Settlement Board.--- (1) When a notification has been issued under section 5, the Board shall publish in the local vernacular in every town and village in the neighbourhood of the land comprised therein, a proclamation:- a) specifying, as nearly as possible, the situation and limits of the proposed forest; b) explaining the consequences which, as hereinafter provided, will ensue on the reservation of such forest; and c) fixing a period of not less than three months from the date of such proclamation, and requiring every person claiming any right in respect thereof either to present to the Board within such period a written notice specifying, or to appear before it and state, the nature of such right and the amount and particulars of the compensation (if any) so claimed. (2) After the issuance of notification under section 5, no right shall be acquired in or over the land comprised in such notification, except by succession, or under a grant, or contract in writing made or entered into by, or on behalf of Government, or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, except in accordance with such rules as may be made by Government in this behalf. 7. Inquiry by Forest Settlement Board.--- The Board shall take down in writing all statements made under section 6, and shall at some convenient place inquire into all claims duly preferred under that section, and the existence of any rights referred to in section 6 so far as the same may be ascertainable from the records of Government and the evidence of any persons likely to be acquainted with the same. Section 4 of the Forest Ordinance has provided for powers of the Government to declare a forest as reserved forest. The section closes on the following words; "as a reserved forest in the manner hereinafter provided." Then the sections following Section 4 have provided the mode, manner and necessary formalities for notifying a forest as reserved forest, as well as the consequences and effects of such declarations. Section 5 provides that whenever it is decided to constitute any land as a reserved forest, Government shall, by a notification in the Official Gazette declare that it has been decided to constitute such land as a reserved forest and will give a description of such land. Clause (c) of subsection 1 of Section 5 of the Forest Ordinance has provided that it shall appoint a Board to enquire into and determine the existence, nature and extent of any rights, alleged to exist in favour of any person in or over any land comprised within such limits or forest produce there-from and to deal with same as provided in Chapter-H of the Forest Ordinance. Subsection 2 of Section 5 of the Forest Ordinance has provided for composition of the Board and rest of the procedure has also been provided in subsections (3) & (4) of Section 5 as well as in Sections 6 & 7 of…
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