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Petitioner: SHADI KHAN VS Respondent: PUNJAB PROVINCE
P L D 1953 Lahore 69
P L D 1953 Lahore 69
Before M. R. Kayani, J
SHADI KHAN and another‑--Plaintiffs‑--Appellants
Versus
PUNJAB PROVINCE and 3 others‑Defendants‑Respondents
Regular Second Appeal No. 67 of 1951 decided on 20th November, 1952 from the decree of Muhammad Abdullah Cheema, Senior Civil Judge, Attock at Campbellpur (with enhanced appel late powers), dated the 14th November, 1950, affirming that of Aziz Ahmad Waraich, Civil Judge, 1st Class, Campbellpur, dated the 30 May, 1950.
Forest Act (XVI of 1927),
S. 38‑Jurisdiction of Civil Court-- Not barred in respect of all matters arising out of Notification --Civil suit may lie to restrain Government from taking over management of forest.
There is nothing in the Act which can indicate that the jurisdiction of the Civil Court is barred in relation to all matters arising out of the notification.
Section 32 authorises the Government only to "regulate" the cutting, etc., and the removal of the forest‑produce, and that it does not confer any power so to frame the rules as to take away an existing right.
So far as section 38 goes, if persons, possessing the re quisite qualification apply to the Collector, the Government has a discretion to protect the land as a forest and to manage it for that purpose. Section 38 by itself will not appear to exclude the exercise of rights by persons other than the proprietors, but under section 30 the Government may suspend "the rights of private persons", which would seem to include persons other than owners, for a period not exceeding thirty years, provided that the remainder of the forest is sufficient for the due exercise of the rights suspended.
Ghulam Mohy‑ud‑Din for Appellants.
S. A. Mahmood, Assistant to the Advocate‑General for Res pondent No. 1 and Sheikh Abdul Aziz for all other Respondents.
JUDGMENT
KAYANI, J.‑--The land in suit was taken up for manage ment by the Forest Department on the application of the proprietors of Kot Sarang of Tallagang Tehsil who had shares in it amounting in the aggregate to at least two thirds thereof, and the necessary notification issued by the Provincial Government under section 38 of the Forest Act. The plaintiffs as residents of the village filed a suit for a declaration against the Punjab Province and the aforesaid proprietors that since they had the right of grazing, cutting grass and wood and drawing water in the land aforesaid, Government had no power to take up its management, and for a consequential injunction. In the body of the plaint it was also alleged that the notification under section 38 had not been issued according to law and rules.
Among other things it was pleaded for the defendants that the Civil Court had no jurisdiction to entertain the suit.
The following issues were struck:
(1) Whether necessary requirements of law have not been fulfilled before issuing the Notification No. 4528‑Forest, dated 27th August 1948?
(2) If so, whether the Civil Court has no jurisdiction to entertain this suit?
(3) Whether plaintiffs gave a valid notice under section 80, C.P.C. to defendant No. 1?
(4) Whether plaintiffs have prescriptive right to graze their cattle in the land in suit, cut grass and wood out of it, as well as the right of passage through it and the right to use water of this land?
The trial Court found that notification had been correctly issued, and as regards issue No 2, reliance was placed on a copy of a judgment of this Court (Ex. D/1), in which it was held that "if once the requirements of section 38 have been fulfilled, it is not for the Civil Court to see whether the conditions have been fulfilled rightly or wrongly". On issue No. 4, the finding was that although the plaintiffs had succeeded in proving from the wajib‑ul‑arz that they had a right of grazing and cutting grass and wood, their remedy was to approach the Government or the Forest Department and that the Civil Court was powerless. The Senior Sub‑Judge in appeal upheld this finding and, relying again on the judgment of the High Court (Ex. D/1), observed:
"It has been held that once it is proved that the requirements of section 38 have been fulfilled, the manner in which the Government exercised its discretion in issuing the notification cannot be questioned in a Civil Court. In the present case a notification was issued with respect to land in which the defendants had a 2/3rd share. Under the circumstances the question whether the Government bad rightly or wrongly dealt with the plaintiffs' right cannot be challenged in a Civil Court."
In short, both the lower Courts were of the view that once the Government issues a notification, a Civil Court has no jurisdiction whatsoever, apparently in any matter relating to the land thus transferred to Government.
In second appeal, it is not contended that there was anything wrong with the notification but it is contended, firstly, that the appellants right was secured by the very terms of the application Ex. P/X made by the proprietors under section 38 and accepted by the Government, and, secondly, that since the trial Court has found that according to the wajib‑ul‑arz the plaintiff were entitled to graze their cattle and to cut grass and wood, the Civil Court had power to declare this right.
I do not find anything either in the Act or in the judgment Ex. D/1 which can indicate that the jurisdiction of the Civil Court is barred in relation to all matters arising out of the notification. In Ex. D/1 the position taken by the plaintiff was that "before issuing a notification Government should have examined the question of the grazing rights of the plaintiffs with a view to excluding from the area covered by the notification more lands over which the plaintiffs held grazing rights, and it was observed that "since it is now clear and admitted that the notification issued under section 38 of the Forest Act is valid, the manner in which Government exercised its discretion in issu ing the notification is not a matter which can be controlled by the Civil Court".
In order to decide the point in issue, it is necessary to refer to the following provisions of the Act:‑
Section 38 (1): "The owner of any land or, if there be more than one owner thereof, the owners of shares therein amounting in the aggregate to at least two‑thirds thereof may, with a view to the formation or conservation of forests thereon, represent in writing to the Collector their desire‑
(a) that such land be managed on their behalf by the forest- officer as a reserved or a protected forest on such terms as may be mutually agreed upon; or
(b) that all or any of the provisions of this Act be applied to such land".
Under subsection (2) the provisions of sections 30, 32, 33 and 34 were made applicable, as will appear from the printed form of application Ex. P/X.
Section 30: "The Provincial Government may by notification fn the local Official Gazette
(a) declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification;
(b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty . years, as the Provincial Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such term provided that the remainder of such forest be sufficient and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed ; or
* * * *
Section 32: "The Provincial Government may make rules to regulate the following matters namely;
(a) The cutting, sawing, conversion and removal of trees and timber and the collection, manufacture and removal of forest -produce, from protected forests;
(b) the granting of licenses to the inhabitants of towns and villages in the vicinity of protected forests to take trees, timber or other forest‑produce for their own use and the production and return of such licenses by such persons".
Sections 33 and 34 are not important from our viewpoint.
So far as section 38 goes, if persons, possessing the requisite qualifications apply to the Collector, the Government has a discretion to protect the land as a forest and to manage it for that purpose. Section 38 by itself will not appear to exclude the exercise of rights by persons other than the proprietors, but under section 30 the Government may suspend "the rights of private person", which would seem to include persons other than owners, a for a period not exceeding thirty years, provided that the remainder of the forest is sufficient for the due exercise of the rights suspended. These rights were suspended by Government under Notification No. 4528, dated the 27th of August 1948, for a period of fifteen years and since it is not the case of the plaintiffs that whatever land is left is inadequate for the exercise of the rights of grazing and cutting grass and wood, the order of suspension cannot be questioned. The learned Assistant Advocate -General at one stage tried to show by a reference to a plan that sufficient land had been left in the village for the purposes aforesaid, but Molvi Ghulam Mohy‑ud‑Din on behalf of the plaintiffs objected that this matter had not been before the Courts below. It could not have been because the plaintiffs have no grievance on that score. What they want is a declaration that they retain these rights even in the land now protected. These rights have expressly been suspended under section 30(b), a provision of law which, I observe from the arguments, has not engaged the attention of the Courts below or of the counsel for the parties. In the absence of Notification No. 4528 referred to above, it is doubtful whether the plaintiffs' right could be denied to them by a mere notification under section 38. The argument of the learned Assistant Advocate‑General that since there was no provision in the rules framed under section 32 to secure the rights of the plaintiffs in respect of grazing and cutting wood and grass, they could not secure such rights through Civil Court, loses sight of the fact that section 32 authorises the Government only to "regulate" the cutting, etc., and the removal of the forest‑ C produce, and that it does not confer any power so to frame the rules as to take away an existing right.
Reliance was next placed for the plaintiffs on the following condition of the application Ex. P/X:‑
"Whatever rights we possess in this area whether as proprietors or as tenants (the sense is not well expressed in Urdu) shall not be altered or interfered with,"
These rights, however, belong to owners and tenants and not to mere residents. Read with section 30, this condition would only mean that the rights of ownership and tenancy will remain temporarily suspended but will not be extinguished.
I would, therefore, hold, not that the Civil Court had no jurisdiction, but that the rights of private persons including the plaintiffs have been suspended under section 30 for a period of fifteen years.
The appeal is dismissed with costs.
A. H. Appeal dismissed.