1. MRS. IRSHAD QAISER, J.--- Mumtaz Khan and fifteen others petitioners seek constitutional jurisdiction of this Court and prayingthat:--- "It is therefore, prayed that this honourable Court may be pleased to:--- A.Declare that the provisions of sections 69 to 73 contained in Chapter X of the N.-W.F.P. Forest Ordinance, 2002 relating to the sale and sawing of timber and section 120 of the said Ordinance and the Rules titled as N.-W.F.P Sale, Sawing and Processing of Timber Rules, 2004 are void, illegal, arbitrary, mala fide and ultra vires of the Constitution on account of excessive delegation of legislative powers to the executive authorities and also on account of being violative of the provisions of Articles 2-A, 4, 8, 18, 25 and 38 of the Constitution of Islamic Republic of Pakistan, 1973 and the respondents have no right to proceed or to take any action against the petitioners under the provisions of the said Ordinance or the Rules made thereunder. The notices issued to the petitioners are also illegal, void and of no legal effect.
2. B.Pass an order restraining the respondents, their servants and officials claiming or acting through or under them from taking any proceedings or actions against the petitioners under the provisions of the aforesaid Ordinance or Rules made thereunder.
3. C.Grant any other relief to which the petitioners may be found entitled by this honourable Court with costs.
4. D.Itisfurtherprayedthatinthemeantimetheoperationof sections 69 to 73 contained in Chapter X of the N.-W.F.P. Forest Ordinance, 2002 and section 120 of the said Ordinance and the Rules made thereunder titled as N.-W.F.P Sale, Sawing and Processing of Timber Rules, 2004, be suspended and respondents may be restrained from taking any action or proceedings against the petitioners till the final decision of writ petition."
5. 2.The brief and essential facts leading to the present petition are that petitioners were carrying on the business of sale and sawing of timber of different kinds at their respective sawing units and timber depots.TheProvincialAssemblyhadpassedanAct;namely;The N.-W.F.P. (Sale and Sawing of Timber) Act, 1996 (Act No.XIX of 1996) and also framed Rules, N.-W.F.P Sale and Sawing of Timber Rules, 1997' in exercise of powers conferred by section 10 of the Act of 1996. Respondent No.3, Divisional Forest Officer, Gallies Forest Division, Abbottabad had issued to the proprietors of sawing units and timber depots with respect to fulfilment of obligations under the said Rules. Petitioners Nos.1 to 11 along with others had challenged vires of the said Act and Rules by filing Writ Petition No.234 of 1997. However, the said writ petition was withdrawn with permission to file afresh petition to also challenge the newly-enacted Ordinance during the pendency of the said writ petition with nomenclature as N.-W.F.P Forest Ordinance, 2002, whereby, N.-W.F.P. (Sale and Sawing of Timber)
6. Act, 1997 was repealed. The petitioners then filed Writ Petition No.47 of 2003, which was also withdrawn with permission to file afresh one to challenge the N.-W.F.P. Sale, Sawing and Processing of Timber Rules, 2004. Thus, the petitioners filed the present writ petitions through which they have called in questions the ultra vires of sections 69 to 73 of the Ordinance, 2002 and the Rules of 2004.
7. 3.Respondents Nos.1 to 3 filed their para-wise comments to the writ petition and learned Deputy Advocate-General also submitted written statement, wherein, they controverted the assertions of the petitioners.
8. 4.The learned counsel for the parties submitted their written arguments. We have gone through the written arguments as well as the available record.
9. 5.The crucial issue in the present petition for determination by this Court are that whether sections 69 to 73 of the North-West Frontier Province Forest Ordinance, 2002 and the North-West Frontier Province Sale, Sawing and Processing of Timber Rules, 2004 framed by the Government in exercise of powers conferred by section 73 of the Ordinance, 2002 are ultra-vires to the Constitution of Islamic Republic of Pakistan, 1973 and illegal on the ground of excessive delegation of legislative powers and whether the present writ petition is maintainable as the alternative remedy of 'Appeal' provided in section 71 of the Ordinance, 2002 was not availed by the petitioners.
10. It is obvious from the Ordinance itself that the Provincial Government has enacted the present law relating to protection, conservation, management and sustainable development of forests and other renewable natural resources and matters ancillary or incidental thereto in the North-West Frontier Province. It also aims to regulate and regularize the sale and sawing of timber and to protect the black-marketing of timber and illegal cutting of trees and sale of illicit timber.
11. 6.Under section 73 of the Ordinance, the powers to make rules for control and regulation of the sale depot and sawing units have been provided to Government, which reads that:--- "73.Power to make rules.--- (1) Government may make rules for control and regulation of the sale depots and sawing units providing for all or any of the following matters, namely: (a)The classes of timber and the kind of timber to which the rules shall apply; (b)Establishment, registration, regulation and inspection of sale depots and sawing units; (c)Fee for registration, including the renewal fee and the period for which the registration shall hold good; (d)Conditions under which timber may be brought to, stored at, and removed from, sale depots, or cut, sawn or fashioned at a sawing unit; (e)Specification of timber, its sale, cutting, sawing or fashioning; (f)Form of registers to be maintained at the sale depots and sawing units; (g)Security to be pledged with the Divisional Forest Officer for the establishment of sale depots and sawing units; and (h)Seizure and sealing of unregistered sale depots and sawing units, including dismantling thereof and confiscation of timber, forest produce and all machinery, tools, equipment and appliances found therein.
12. In the context of the aforementioned Rule, the Government has framed the Rules of 2004 concerning sections 69 to 72 relating to the sale and sawing of timber. In pursuance to section 69 with reference to section 73(b and c), Rule-6 envisages that:--- "6.Registration fee and security.--- (1) Each sale depot, sawing unit or wood processing unit registered under these rules shall be assigned a registration number by the Registering Officer.
13. (2)The security, fee for registration and annual renewal fee shall be as under.
14. (3)The fee for registration and renewal shall be non-refundable."
15. 7.The main emphasis of the learned counsel for the petitioners in the writ petition and the written arguments was that the fixation of registration fee and annual renewal fee etc. was the result of excessive delegation of powers, which was against the spirit of constitution and the law concerning the delegation of powers to the Executive. Similarly, the contention of the learned counsel for the petitioners with regard to enactment of sections 70, 71, 72 and 73 also of the same nature. However, this Court would not agree with the contentions of the learned counsel for the petitioners that the powers conferred upon the executive by section 73 of the Act to frame Rules are in derogation of any law or violative of the Constitution or in any manner excessive delegation of powers to executive. It is well-settled principle that Courts do not sit in judgment over the wisdom of the Legislature and while acting under Article 128 the Governor exercises legislative and not merely executive powers. No mala fide could be attributed to Legislature. The wisdom behind the said legislation is found mentioned in the preamble of the Ordinance to some extent. No tax in stricto sensu has been levied by the Government in pursuance to the Rules of 2004. It is a nominal fee for registration of sale depots and saw units and annual renewal fee. As to the excessive delegation, guidelines are mentioned in section 73 of the Ordinance and it is a ground used most sparingly to strike down a legislation. It is not shown with any specific instances from the Rules that the Government has acted in excess of the authority vested in him. As far as promulgation of Ordinance, 2002 is concerned, it is the domain and prerogative of the legislature, which has wisdom to promulgate a law to achieve a particular object and purpose presumably promulgating such laws legally, validly and constitutionally on the basis of its competence. The Ordinance of 2002 was validly promulgated In accordance with the constitutional provisions, which, in no way, violated the Fundamental Rights of the petitioners. In the Ordinance, under Rule 71 right of appeal has been provided, thus, there is no valid and legal ground to strike down legislative instrument on the pretext of being promulgated in excess of delegation of legislative powers to the executives.
16. Thus, it cannot be declared ultra vires the Constitution. The present writ petition is not maintainable on the ground that the petitioners have not availed the remedy of appeal before the Appellate Authority provided in section 71 of the Ordinance.
17. 8.Accordingly, for the reasons stated hereinabove, this petition being without merit is dismissed.
18. No order as to costs.
19. Security Rs.Registration Rs.Annual renewal fee Rs.
(a) Sale depot 5000 2000 1000
(b) Sawing unit 2000 500 100
(c) Wood processing unit (i) for local use (ii) for export abroad50001000020005000 10002500