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Petitioner: SATTAR MUHAMMAD AND 6 OTHERS VS Respondent: CHIEF CONSERVATOR OF FORESTS
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Khurshid Khan, Malik Muhammad Aslam Khan Title:SATTAR MUHAMMAD AND 6 OTHERS vs CHIEF CONSERVATOR OF FORESTS,
JUDGMENT
Reported As: PLD 1980 SC (A J & K) 46 Result: Appeal dismissed Judgment JUDGMENT ' RAJA MUHAMMAD KHURSHID KHAN, J.-This appeal by leave assails the judgment passed by a Division Bench of the High Court, in a Writ Petition No, 9 of 1977, on 30th January, 1979, whereby accepting the petition partly the Government order passed on 5-11-1977 in cancelling a previous Government order dated 25-1-1976, in favour of appellants for working out forests standing on their land having been found bad in law was set aside and the respondents, particularly the Government, were directed to have the appellant's point of view before passing any order. The petition for issuance of writ of mandamus for implementation of the Government order dated 25-1- 1976 was however, refused. 2. The dispute emerges out of the circumstances detailed below: ' The appellants, to this appeal, hail from three villages of Muzaffarabad District namely Batknala, Kai Manja and Haryala. On 30-3-1974, they through their `mukluar' Syed Bashir Ahmad Andrabi, submitted an application (Annexure 'P' with the writ petition), to the Deputy Commissioner/ Collector Muzaffarabad for joint inspection and report about the forests they owned in the area of above-mentioned villages. 3. The Deputy Commissioner in turn on 8-4-1974, formed a Joint Inspection Team consisting of Revenue Assistant and D. F. 0., Jhelum valley Muzaffarabad for the purpose. The Inspection Team submitted its report to the Collector in the month of January, 1975, to the effect that land detailed in para. No, 2 of the writ petition, and forests standing thereon, belong to the appellants and they also retain its exclusive possession.
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4. The Deputy Commissioner/Collector, on the basis of this report, certified (vide Annexure 'B' with the writ petition) that the appellants were owners of the land under forest and the possession also falls with them. After having this certificate, the appellants approached the Government for an order for extraction of timber from these forests. After a chequered history, which need not be stated here, the impugned Government order dated 25-1-1976 addressed to Chief Conservator of Forests, was issued by respondent No, 2 (copy at Annexure 73' with the writ petition). This order asked the Chief Conservator of Forests to effect immediate marking and then issue work order. . It also entered that the land and the forest thereon, was the property of the appellants. 5. Chief Conservator of Forests, however, declined to mark the trees and issue the work order. He raising certain objections, submitted the file to Chief Secretary respondent, on 7-4-1976 for reconsideration, who, in turn submitted the file to Minister for Forests. The Forest Minister, on 12-5- 1976, sent the file back to the Forests Secretary and Chief Secretary for implementing the Government order. The file for a considerable time remained rolling in different Departments but the appellants failed to reap the fruit of the Government order as its implementation had all along been refused by the Chief Conservator of Forests. 6. The appellants feeling aggrieved by the conduct of Chief Conservator of Forests, invoked the extraordinary writ jurisdiction of the High Court under section 44 of the Interim Constitution Act by way of writ petition and asked for an order of mandamas to the respondents for implementation of Government order dated 25-1-1976 in directing respondents Nos. 1 and 2 to mark the trees and issue the work order. The petition was admitted for regular hearing on 17-7-1977. During the pendency of the writ petition, another order dated 5-11-1977 issued on behalf of the Chief Executive Azad Kashmir Government, who by that time, under law, assumed the power of the Government, cancelled the Government order earlier passed on 25-1-1976. By way of an amendment in the writ petition, this later Government order was also challenged on the ground that the Government could not recall the earlier order which had attained finality. The respondents resisted the petition on the ground that the Government, for various reasons, had the power to rescind the order. The High Court, as earlier stated, disallowed the writ of mandamus but discharged the subsequent cancellation order as it was passed behind the back of the appellants. 7. The appellants, in this appeal, assail the judgment of the High Court and submit that the judgment may be varied to the extent of issuing a writ of mandamus to the respondents, particularly respondents Nos. 1 and 2, for the implementation of Government order dated 25-1-1976 and for setting aside the subsequent Government order passed on 5-11-1977 by virtue of which the earlier order dated 25-1-1976 was cancelled. Certain other orders were also sought to be implemented, but in our view, as all such orders merge in the Government order dated 25-1-1976, they lose their importance and need no determination. 8. The only point which requires determination is whether the Government was competent to recall the Government order dated 25-1-1976 on 5-11-1977. 9. In this context, it had been contended by the learned counsel for the appellants that after passing the Government order dated 25-1-1976, the Government had became Functus officio' and lost `locus poenitentiae' to cancel the said order because by virtue of this order the appellants were clothed with valuable rights which could not be snatched away subsequently by the Government. His case, concisely, is that after passing the order dated 25-1-1976, nothing was required to be done by the Government and the order was complete an final in all respects not capable of rescinding and it had to be acted upon and implemented by the Chief Conservator of Forests. To substantiate his contention, it had been stated that respondent No, 1 (Chief Conservator of Forests) even had passed the necessary order for implementation of this Government order and in fact, had sent the case to the concerned Conservator for marking the trees as is evident from the written statement filed by the Government.
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10. The question which falls for determination is whether on the facts of the case, the Government was competent to recall its order passed on 25-1-1976. 11. Before embarking upon to decide this point, it would be advantageous and beneficial to know the law relating to sale and development of private forests in Azad Kashmir. The rules on the subject were framed by the Government in the year 1958, under a Government Order No, 405/58 which reads:- "In pursuance of the provisions of section 2 of the Azad Kashmir Land Revenue Amendment Act of 1955, the Azad J & K Government is pleased to make the following rules regarding sale and development of Private Forests:- (I) These rules may be called the Azad Kashmir Rules for Sales and Development of Private Forests. (II) These Rules shall apply to whole of Azad Kashmir territory and shall come into force at once. (2) These Rules shall not in any way effect the provisions of illaqadars undemarcated rules sanctioned under Council Order No, 1192-C of the year 1941. (3) Definitions.-In these rules unless there is anything repugnant to the subject or context:- (a)"Owner" means land lord or Zamindar in whose name the ownership of land in question is entered in the Revenue records. (b)"Private Forests" means area bearing trees, that is assessed to land Revenue and over which the Owner has undisputed right of Ownership. (4) Sale and Management of Private Forests.-The owner of a private forest who wants to utilize his forest for commercial purposes will apply to the Chief Conservator of Forests Azad Kashmir Government, who is authorised to sanction the sale of trees subject to and in accordance with these rules. (5) The Chief Conservator of Forests shall refer the application of the owner to the Revenue Department for verification of his title to the forest. (6) The Chief Conservator of Forests will- sanction working (sale and Development) of the forest only if - (a)the forest is capable of yielding (i) at least 50 trees of 24* diameter and above, at breast height under selection-cum-improvement system of (ii) 400 trees of smaller dimensions under thinning- cum-improvement system; (b)It is certified by the Deputy Commissioner of the District that the applicant is undisputed owner of the land and the Forest in question; and (c) the owner undertakes, in writing, to abide by and carry out the operations, to be specified, that may be prescribed by the Forest Department for the protection and development of the Forests. (7) The Nishandehi of private forest to be marked for sale and Development will be given by a Revenue Officer of the rank of the Revenue Assistant or above, to a representative of the Forest Department who will be of the rank not lower than that of the Divisional Forest Officer. (8) After the sanction is issued by the Chief Conservator of Forests the owner will hand over the forest to the Forest Department for purpose of sale and management for a period to be fixed by the Chief Conservator of Forests in consultation of the owner. (9) On receipt of the Chief Conservator of Forests trees will be measured, marked and numbered by the Divisional Forest Officer of the Division. (10) Copies of the marking lists will be sent to the Chief Conservator of Forests who will draw up the tender Notice and arrange sale of the Forest in the manner applicable for the sale of Government forests. In exceptional cases the Chief Conservator of Forests, may, however, allow the forest to be worked out by the owner himself, under the supervision of the forest authorities provided that he has adequate finances at his disposal and has the capacity to complete the job within reasonable period of time.
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(11) Twenty-five per cent. Of the gross-sale-proceeds will be charged by the Government as supervision and Development charges and the balance paid to the owner, provided that ten per cent. Shall be treated as Government revenue and fifteen per cent. For the development of the forests. The fund for development will be utilized in consultation with the owner and the manner in which the amount will be spent will be determined by an agreement to be executed by the owner with the Forest Deptt. Under rule 6(c) of these rules. In case the forest is worked by the owner himself the value of the trees marked and meant for sale will be assessed at the average rates offered by the Forest Lessees, in the forest Range in which the private forest is situated. (12) (a) If the owner contravenes the provisions of these rules or fails to abide by the terms of the agreement entered into by him with the Forest Department under rule 6(c) the Chief Conservator of Forests may direct the sale of the trees marked and confiscate an amount not exceeding one- half of the value of trees marked for sale. ' If after the completion of the work the owner contravenes any provision of these rules or any terms and conditions of the agreement relating to the Development or the Private forest the Chief Conservator of Forests may, if he deems necessary, retain possession of the private forest for the purposes of development for a period not exceeding ten years. (13) Sale of wood from private forests in a year shall not exceed 1,00,000, cft. Of conifers and 20,000 cft. Of broad leaved trees throughout Azad Kashmir Territory." 12. The Azad Government of the State of Jammu & Kashmir then in exercise of the power conferred by section 2 of the Azad Jammu & Kashmir Land Revenue (Amendment) Act, 1955, effected certain amendments in rules 4, 6, 8, 10 and 13 of the said Government Order and also added a new clause as clause 14, vide Notification No, Forests/4392-95/76 dated 1/3-11-1976. The Notification reads:- "In exercise of the powers conferred by section 2 of the Azad Kashmir Land Revenue (Amendment) Act, 1955, the Azad Government of the State of Jammu & Kashmir is pleased to direct that in the Azad Kashmir Rules for sales and development of private Forests, the following amendments shall be made namely:- (1) For rule 4, the following rule shall be substituted, namely:- `4. The undisputed owner of a private forest who wants to sell his forest for commercial purposes will apply in writing to the Chief Conservator of Forests requesting for the sanction of the same in accordance with these rules.' (2) For rule 6, the following rule shall be substituted, namely:- "6. The Chief Conservator of Forests will submit the case to the Government through the Secretary Forests provided that:- (a) the forest is capable of yielding (i) 50 trees of 2e D B H and above under selection-cum- improvement system, or (ii) 400 trees of smaller dimensions under thinning-cum-improvement system. (b) It is certified by Deputy Commissioner of the District that the applicant is undisputed owner of the land and the forest in question. (c) The field map of the forest applied for is available. (3) For rule 8, the following rule shall be substituted, namely:- `8. After the sanction is issued by the Government as to the sale and development of forests in favour of the owner, the owner will hand over the forests to the Forest Department for the purpose, for a period to be fixed by the Chief Conservator of Forests.' (4) For rule 10, the following rule shall be substituted, namely:- `10. Copies of the marking lists will be sent to the Chief Conservator of Forests who will arrange extraction and sale of the forests in the manner applicable for the sale of Government Forests.-The extraction and sale of forests will be done directly by the Forests Department A. K. L. A.S. C. In accordance with the procedure to be laid down by the Chief Conservator of Forests.'
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(5) For rule 13, the following rule shall be substituted, namely:- `13. Sale of wood from private forests in a year shall not exceed 2,00,000, eft. Of conifers and 20,000 eft. Of the broad leaved trees throughout Azad Kashmir territory.' (6) After rule 13, as amended, the following new rule shall be added, namely:- `14. The royalty rates for 'assessing the gross sale proceed will' be determined and reviewed by the Forest Department keeping in view the market trend. The Chief Conservator of Forests shall be the final authority to fix the royalty rates in case of any dispute arising between the owner and the Department." (underlining* is ours). 13. It is thus manifest that under rule 2 of the notification, the Chie Conservator of Forests is only competent to submit the case of private forest to the Government and besides other requirements, the existence of field map of the forest applied for under sub-clause (c) of the rules is a must and without this no case legally can be sent to the Government. In this case, it is a common ground between the parties that the field map of the land in dispute A. Was not available. Then how, in violation of the notification relating to the sale of trees, the Government order dated 25-1-1976 was passed, we fail to understand. The Government order passed on 25-1-1976 in favour of the appellants, for this solitary reason, shall be deemed to be defective, bad in law and the Chief Conservator of Forests, in our view, was well advised not to act upon such an order. 14. Under rule 8 of the notification, after the sanction of the Government in favour of an owner, the owner is required to hand over the forest to the Forests Department for a period to be fixed by the Chief Conservator of Forests. Under rule 9, the Chief Conservator of Forests, in turn, will get the trees measured, marked and numbered by the Divisional Forests Officer Were in italics] of the Division. After that the rule 10 provides that the copies of the marking list will be sent to the Chief Conservator of Forests who will arranage extraction and sale of the forest in the manner applicable for the sale of the Government forests. Under this rule, the sale is necessarily if not permitted to be done otherwise to be done by the Forests Department/AKLASC in accordance with the procedure to be laid down by the Chief Conservator of Forests. 15. In the instant case, it would appear that none of the legal requirements as stipulated under law, were fulfilled; the forests were not handed over to the Forests Department, no marking was ordered by the Chief Conservator of Forests as stipulated under rule 9 and naturally no question of extraction and sale of forests could arise as that stage had not as yet reached. It thus admits of no doubt that the Government order had not been acted upon and no decisive steps were taken by the Department for the implementation of the Government order. Until the decisive steps, in compliance of the order as embodied in the notification and rules, have not been taken, it cannot be said that any right whatsoever has been created in the appellants. The Government order and notification pertaining to the sale of timber have the force of law and any order of the Government in violation of any of the provisions of this law shall have to be construed as an order bad in law and the cancellation of such an order in the year 1977, in our view was justified. 16. It has been, as earlier said, vehemently argued by the learned counsel for the appellants that the Government had done everything that was necessary for it to do and for that reason the Government was functus officio' and had no 'locus poenitentiae' to cancel the order. We are afraid we cannot agree with it. The 'locus poenitentiae' lies with the Government for cancellation of the order if the order, as said elsewhere, had not been carried into effect; and more so when it is an illegal order. The crux of the matter being whether the order has been acted upon in taking necessary physical steps to make the same effective and if such a step has been taken, and the order is acted upon, then only and not otherwise it confers rights upon the appellants. In the instant case steps under Government Order No, 405/58 and subsequent Notification dated 1/3-11-1976 have not yet been taken and as such the appellants had no cause of action when the cancellation order was passed in the year 1977.
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17. In our view, the authority that has the power to make an order has also the power to undo it to retrace the step. Of course, this is subject to the exception that where the order has taken legal effect and in pursuance thereof, certain rights have been created in favour of an individual, such an order cannot be withdrawn or recalled to the detriment of those rights. In such cases, the doctrine of 'locus poenitentiae , i. e. Power of receding till the decisive step is taken, is always available to the Government of the relevant authorities apart from the provisions of section 21 of the General Clauses Act. 18. The contents of the Government order dated 25-1-1976 show that it was only a communication about principal course of action in the matter to be taken by the Department. It only directed the Chief Conservator of Forests to mark the trees and then issue the work order, which was not done. This order was detained in the Office of the Chief Conservator of Forests who, seems to have cautioned the Government that the order is not proper. The Government reconsidered the matter and concluded that it was a wrong step and for that reason redressed the same before it had been acted upon or had taken any legal effect by the Chief Conservator of Forests. It clearly indicates that the final decisive step was not taken for implementation of the order when it was recalled in the year 1977. It admits of no doubt that the Government order, per se, does not create any right in the appellants as it was never acted upon in marking the trees and issuing the work order. It cannot therefore, be said that any vested right had been created in favour of the appellants prior to the withdrawal of the order. If marking of the trees would have been made, of course, the question of vested right would have gained some importance. The phrase `taking a decisive step' or the alternative phrase 'carrying an order into effect' as used in respect of an order capable of a physical implementation cannot mean 'mere documentation', but must connote the taking of an active physical step by which alone the order could be effectively implemented.' 19. Vested rights would have gained some importance if the trees would have been marked because in that case it may be said that decisive step was taken for implementation of the Government order. It, therefore, follows that so long the order of the Government is not acted upon, it just remains a formal order and amounts to mere 'documentation' and 'inchoate' order. 20. Two decisive steps, to create a right in this case, were required to make the order effective; first being to mark the trees and then issue the work order. But as it is nobody's case that any such steps were taken prior to the cancellation order made by the Government in the year 1977, no vested right can be claimed by the appellants on the basis of such an order which was still in the process of documentation. It thus admits of no doubt that mere issuance of a Government order, per se, does not create any interest whatsoever until the order is not physically implemented. Vested right, may also be said to mean an immediate fixed right for enjoying a thing. It is a right which can be enjoyed immediately by a person. But here in this case, marking of trees was not effected, no work order was issued. How can then it be said that any right whatsoever had come to reside in the appellants. 21. In these circumstances, the arguments that the Government order dated 25-1-1976 had taken a legal effect or created a vested right in favour of the appellants is not available to the appellants. 22. The Government order only directed the Chief Conservator of Forests, to mark the trees and issue the work order. But admittedly trees have not been marked and no work order was issued in implementation of the Government order. It is thus evident that the first Government order when it was recalled on 5-11-1977 was not still implemented. 23. Let us now deal with the case-law. The learned counsel for the appellants, besides some other authorities which have no bearing to the facts of the present case, has relied on the following cases:- (1) PLD 1956 FC 46 (2) PLD 1956 Sind 101 (3) PLD 1969 SC 407 (4) PLD 1953 Dacca 422
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(5) PLD 1963 Lah. 32 (6) 1970 SCMR 673 (7) PLD 1970 SC 437 24. We have gone through all the authorities. The authorities mainly dela with the question as to how vested rights come to reside in a person under Government order or notification, what is a decisive step, when an order or notification becomes final and when the authority issuing the same seizes to have any power to rescind it. However, the cases referred to above shall be critically examined but before discussing the authorities, it would be necessary to know whether the law laid down in a case in its peculiar circumstances, can be said to have applicable to all the cases. The judicial decision primarily applies to facts on which it is given. Such observation, generally is made on consideration of the peculiar facts of a particular case. If they are applied indiscriminately to other cases, it is likely that it may result in miscarriage of justice. A case in fact, is an authority applicable to the facts of a particular case and not for any general purpose, that may seem to follow logical from it. Obviously it would not be safe to rely on general proposition of law decided in any individual case to form foundation for general principle because the observation in a judgment separated from the context would not support the isolated data in another case. It would consequently be misleading to apply the inference drawn from certain facts and circumstances to other cases based on different facts and circumstances. In view of this state of law, the law laid down in a case, generally only applies to the facts of that case and it cannot be said that such a law attains authenticity for every case of the nature. 25. In case of Shehbaz v. The Crown (1), the facts were:- `The appellant was convicted of murder and sentenced to death on 5th February, 1953, by the Sessions Judge of Sialkot. On Appeal the High Court of Lahore upheld the conviction but reduced the sentence to transportation for life on 6th May, 1953. Towards the end of 1953, the brother of the appellant moved the Government of the Punjab for the remission of the appellant's sentence and early in August, 1954, the Punjab Government passed orders remitting the sentence of the appellant unconditionally with the direction that he should be released on the Independence Day i. e. 14th August 1954.…
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