IKRAMULLAH KHAN, J-. This single judgment shall dispose of present CR No.923-M/2007, titled, "Governmen t of NWFP etc Vs Muhammad Razaq etc" and connected CR No.835/2007, titled, "Muhammad Raziq etc Vs Government of NWFP etc" as both the petitions have been preferred against one and same judgment & decree dated 9.3.2007 rendered by learned Additional District Judge/ Izafi Zilla Qazi Bunir , whereby appeal of respondents No.1 to 8 was partially accepted and Order , Judgment and decree of Senior Civil Judge/Aala Illqa Qazi, Bunir , dated 21.4.2005 was modified, and resultantly claim of the respondents No.1 to 8 was partially decreed.
2. In essence, the predecessor of respondents No.1 to 8 (petitioners in CR No.835/2007) filed a suit for declaration, perpetual injunction and possession in respect of land measuring 43 kanals, 3 marlas situated in Khatha No.2596, Khasra No.8707, fully detailed in the heading of the plaint. The suit was contested by petitioners (respondents in CR No.835/2007) through filing of written statement raising therein legal and factual objections. From the divergent pleadings of parties, learned trial Court framed the required issues.
Both the parties thereto the suit, led their respective evidence during course of trial of the suit and, on the conclusion of trial, learned trial Court after hearing learned counsel for the parties, dismissed the suit of respondents No.1 to 8 vide impugned judgment and decree 21.4.2005. Feeling aggrieved from the same, respondents No.1 to 8, preferred appeal, which was partially allowed by the appellate Court vide judgment and decree dated 9.3.2007 by partially decreeing the suit of the respondents. Aggrieved from the same, both the parties have filed separate petitions mentioned above.
3. Arguments of learned counsel for the parties heard and record gone through with their valuable assistance.
4. The present District of Buner was a part of the present District of Swat, which was a princely ruled state. Ex-state of Swat was, merged, into the Province of NWFP through Regulation No. I of 1969 dated 15/8/1969, whereas, the Ruler of Swat were ceased to exercise any power or perform any function with respect to any matter falling within the legislature competence of the provincial legislature and relating to the administration of such territories.
5. To determine, the State properties in Ex-state of Swat, Regulation 122 dated 12/4/1972 was promulgated whereas, a commission called "Dir-Swat Land Dispute Enquiry Commission" was already appointed by the Provincial Government vide Notification No.66 S.O.(S.P.L.)/H.D/70 dated 8/10/1970. Section 3 of the Regulation 122 reads as: "The Provincial Government on the basis of the recommendations of the Commission and subject to any directive given by the Federal Government shall by order notified in the Of ficial Gazette, determine:-
(a) What property is state property of the former States of Dir & Swat respectively:
(b) What property is private or personal property of the late Nawab Sir Shah Jehan Khan, Ex-Ruler of the former State of Dir and the late Sir Abdul Wadud Sahibzada, K.B.E., Badshah Sahib of the former State of Swat respectively;
(c) The respective share of the various heirs of the aforesaid two Ex-Rulers in their personal or private property .
Whereas Section 4 of the Regulation reads as:- On the issue of an order under paragraph 3.-
(a) The State Property shall vest and shall be deemed to have vested in the Provincial Government on the and from the coming into force of the Regulation; and,
(b) The private or personal property of the two Ex-Rulers referred to in paragraph 3 shall devolve upon and be distributed among their respective heirs in accordance with the said Order .
Section 5 of the Regulation reads as:- If any question arises whether any particular property to which an order under Paragraph 3 does not relate is State Property or Private or Personal property of the Ex-Rulers of either of the said States, the same shall be decided by the Provincial Government which shall set out in its order the complete particulars of the property and such decision shall save as provided in this Regulation be final" .
6. The Provincial Government, on the recom mendation of the Inquiry Commission ibid, declared, the Forest Land as State property vide Notification No. 1521 dated 15/9/1972 which reads as under:-
(b) All forest situated in the former State of Swat shall be the State property (subject to payment of fifteen percent of their income as royalty to the local right holders.
7. In pursuance of the Notification ibid, the Provincial Government of NWFP (now KPK) issued General Notification dated 20.12.1975, under the provision of Section 29 of the Forest Act, 1927 which reads as:- "No.SOFT(F AD) V-168/71(i) In exercise of the powers conferred by Section 29 of the Forest Act, 1927(Act XVI of 1927) the Government of North W est Frontier Province are pleased to: a. Apply the provisions of Chapter IV of the said Act to all Forest Land in Chitral, Dir, Swat and Kalam protected area and; b. Declare al the said forest land as protected forests."
While the provisions contained in Section 29 of the Act is read as:
29. Protected forests: -- (1) The Provincial Government may, by notification in the Official Gazette, declare the provisions of this Chapter applicable to any forest-land or waste land which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled.
(2) The forest-land and waste-lands comprised in any such notification shall be called a "protected forest".
(3) No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forest-land or waste-land comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the Provincial Government thinks sufficient.
Every Such record shall be presumed to be correct until the contrary is proved: Provided that, if, in the case of any forest-land or wasteland, the Provincial Government thinks that such inquiry and record are necessary , but that they will occupy such length of time as in the meantime to endanger the rights of Government, the Provincial Government may, pending such inquiry and record, declare such land to be a protected forest, but so as not to abridge or affect any existing rights of individuals or communities.
8. While the Forest Act, 1927 had already extended to the Provincially Administered Tribal Area (PATA) in terms of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 vide Regulation II of 1974 on 20.5.1974. On repeal of the Forest Act, 1927, the Forest Ordinance, 2002 was extended, which is enforced in PATA since 24/7/2004 vide Notification No. SO (Judic ial) HD/1-34/04 in terms of clause (3) of Article 247 of the Constitution of Islamic Republic of Pakistan.
9. The settlement operation was commenced in District Swat including Buner , in the year, 1974 and was completed in the year, 1980 in District Buner , while in the year 1986 in District of Swat. All the forest land already notified as protected forest were entered in the record of rights, in the name of Provincial Government, as Forest. A schedule separate khata was prepared in each Mauza where forest was existed, in order to enter names of local right holders. Due to mismanagement and poor supervision of Forest Department, local people of Buner and Swat as well as Dir and Chitral, started cutting of trees and large tract of land was evacuated from forest trees. Thereafter, either the tenant class mostly Gujar by tribe or local landlords, taking benefit, therefrom vacant pitches of lands, instituted civil cases, claiming to be owners of lands, which was entered in record of rights as Forest owned by the Provincial Government. Civil Courts had granted decrees to such persons merely that no forest trees were found thereupon, the suit land. This practice was continued and many cases were also came before the Apex Court but nowhere the question of jurisdiction of Civil Court, was ever agitated before any Court, however, the issue of jurisdiction was brought before this Court in C.R.
No.153/2004 decided on 20.3.2012, wherein, this court held as:- "The Forest Act, 1927 was repealed by Section 120 of the Ordinance, 2002. The ordinance 2002, has also provided a special procedure to resolve such like disputes by the Board to be constituted under Section 5(c) of the Ordinance prior to issuance of Notification for declaring the property to be a part and parcel of Reserved Forest or otherwise. Sub Section 4 of Section 29 also provides inquiry for determination of rights of private persons so in the given circumstances, judgment and decrees of the courts below are hereby set aside and the suit is dismissed."
10. The provision contained in Section 29 of the Ordinance, 2002 or Repealed Act, 1927 has also been discussed by this Court as well as Apex Court in various judgments. In this regard, the first ever reported judgment in hand is "Major Azam Khan Affandi vs Deputy Commissioner, Swat and 7 others reported as 2000 SCMR-548, wherein the Apex Court held as:- "Issuance of Notification under Section 29 Forest Act, 1927 declaring certain land to be "protected forest". Mere issuance of such notification would not divest the real owners of the forest land of their proprietary rights. This is admitted position that before the notification the government was neither the owner of the property in question nor it had ever claimed proprietary rights in this land.
In another case titled "Government of NWFP and others v. Khair-ul-Bashar (2004 CLC 296), this Court held as under:- "The question that needs determination in this case is as to whether the property in dispute is protected forest or private property owned by the respondents/ plaintif fs. The answer to this question cannot be given at this stage because the provisions of Forest Act, 1927 were extended in PATA Area on 29.5.1974 vide NWFP Regulation No.II of 1974".
The same view is also taken by this Court in "Government of NWFP and others vs. Bakht Jamal and others" (PLD 2004 Peshawar 801. But the question of jurisdiction of Civil Court had not been discussed and resolved by this Court. In Major Azam Khan Affandi's case, the apex Court, in the given facts and circumstances of that very case, had held that the Government was neither owner nor claimed any proprietary rights over the suit land, as such notification under section 29 of the Forest Act, 1927, could not divest the real owner therefrom their proprietary rights, but the notification issued under MLR 122, had never been discussed, which conferred proprietary rights over all the existing Forest on State. MLR 122 has been protected and saved under Article 8(1) (2) of Schedule First at Serial Nos.22 & 23 of the Constitution. No person either tenant or landlord, has questioned the said Regulation and, the notification issued thereafter proper inquiry, by the then Commission and published in the official gazette on 15t September 1972.
11. The provision of Section 5 of Regulation 122 has expressly excluded, the concerned jurisdiction of Civil Court,confers upon under Section 9 of the Civil Procedure Code. A complete hierarchy was provided thereunder , the MLR 122, for determination of the dispute in regard to claim of ownership in regard to State property .
12. No one so far claimed propriety rights in or over forest declared to be State property under notification dated 15.9.1972, then the Government of Khyber Pakhtunkhwa (KPK), was fully justified to issue notification dated 20.12.1975 under proviso thereto Section 29 of the Forest Act, 1927 to declare all the forest and waste land, as protected forest subject to payment of the royalty amount determine by Provincial Government while by promulgation of notification dated 22.12.1975, all trees were declared as reserved trees which as under:- "No.SOFT (FAD)V-168/71(ii): Whereas by this Department Notification No. SOFT (FAD)V-168/71(i) dated 20.12.1975, all forests in the Provincially Administered Tribal Areas of Chitral, Dir, Swat and Kalam have been declared as protected forests, under the provisions of Section 29 of the Forest Act, 1927 (Act XVI of 1927); Now, therefore, in exercise of the powers conferred by section 30 of the said Act, the Government of the North W est Frontier Province are pleased to: a. Declare with immediate effect all trees within the said protected forests as reserved; and b. Prohibit, with immediate effect, the quarrying of stone, the burning of lime or charcoal, or collection or subjection to any manufacturing process, or removal of any forest produce in any such forests and the breaking up or clearing for cultivation, for building, for harding cattle or for any other purpose, of any land in any such forests.
13. Now the second preposition was that whether a General Notification issued under Section 29 of the Forest Act 1927, would be sufficient to divest any local right holder, therefrom his proprietary rights in or over the protected forest.
14. Before to resolve this legal preposition, the moot question would be who were local rights holder as mentioned therein the notification dated 15.9.1972 issued under MLR 122 and whether, apart from the required amount of royalty other rights was required to be determined in term of Section 29 of the Act, 1927, now Ordinance, 2002.
15. The word right holder was not defined previously under Forest Act, 1927 however , it has defined under Section 2(34) and the Forest Ordinance which reads as:- 2(34). "Right holder" means a person who does not have proprietary rights over forest but his rights or privileges over reserve forest, protected forest waste land as per record of rights admitted at the time of settlement or subsequently, admitted as holder by government".
While the word land owner as defined in Section 2(25) of Forest Ordinance, 2002, which reads as:- 25."Land owner", means person or persons owning land in a village per revenue record or as per custom where revenue record is not available".
While the word owner was defined in Section 2(4A) Forest Act, 1927 which reads as:- "owner ' includes a Court of Wards in respect of property under the superintendence or charge of such Court".
16. The provision of sub section 25 and 34 of the Ordinance, admit right holder or land owner, only those persons, who were recorded in record of right as owner or declared by government as right holder, in the forest concerns. So, only those persons, who are, members of proprietary body of village shamilat/land, can claim their rights, if any, insofar as ownership over, trees of forest is concerned, and likewise, right holders, if they are not owners, can also claim their rights declared by the government under the Forest Ordinance, 2002 in manner and mode as prescribed under Sections 10 & 11. But persons, who were neither recorded in the scheduled khata, (common khata of royalty right holders) or member of the proprietary body of village shamilat/common land, could not claim any right in term of Section 10 or 11, of the Forest Ordinance, 2002.h However prior to approach the Board concerned, such person first establish his right before the Civil Court against the land owner/propriety body of the village and then if the law permits him to approach the Board in terms of Sections 10 & 1 1 of Forest Ordinance 2002 for determination of his rights if any , in or over the concerned forest.
17. The other legal preposition is that whether Civil Court can determine rights of a person in protected forest or whether Civil Court could declare notification under Section 29 of the Act/Order ibid null and void and could declare a protected forest or part of it as private property of a person, claimed to be land owner or right holder as the case may be. Section 9 of Civil Procedure Code invest the Civil Court with jurisdiction to try all civil nature cases except suits of which their cognizance is either expressly or impliedly barred.
18. The provision contained in paragraph 7 of MLR 122 has expressly and in unequivocal terms has excluded the jurisdiction of all courts which reads as: No court shall call in question or permit to be called in question any action taken or order made under this Regulation.
19. Even Section 9 prescribe that all cases pending under this Regulation with the Federal Government or any person authorized by it in this behalf immediately before the commencement of the Dir and Swat (Devolution and Distribution of property and settlement of Disputes of Immovable Property (Amendment) Order, 1980, shall dispose of by the Federal Government or any person authorized by it.
20. Apart from paragraph 9 of MLR 122 and other enabling provisions of the same Regulation, Section 92 of the Forest Ordinance, 2002 expressly exclude the jurisdiction of Civil Court in matters of implementation of the ordinance or rules made thereunder which reads as under:- "Bar of jurisdiction.--- Except as provided in Section 93, no Civil Court shall exercise jurisdiction over any of the matters relating to the implementation of this Ordinance or rules made thereunder."
The Forest Ordinance has not only provided the procedure for claims in or over forest land but also, the fora in order to adjudicate such claims.
21. The provision contained in Sections 5 to 21 of the Forest Ordinance, 2002 has been applied to issuance of notification under Section 29 in regard to protected forest which reads as:- "29(5).Government may, in the interest of forest conservancy , conduct proper inquiry into the nature and extent of right of Government and of private person in or over protecte d forest, as soon as possible, after issuance of notification under subsection (1) or declaration under the proviso to subsection (4) and constitute any such forest or land a protected forest, in accordance with the procedure laid down in respect of reserved forests as contained in Section 5 to Section 21 of this Ordinance."
22. In case in hand, the respondent/plaintif f has not proved on record that he is a land owner or right holder of any right, declared by the Government while failed to take recourse to the provision contained in Section 10 or 11 of the Ordinance, 2002. The instant suit has been instituted in the year 2003 when the Forest Ordinance 2002, was applicable in the area.
23. The last preposition of law that whether Government was and is bound to issue notification under section 5 and to publish the same in term of Section 6 of Forest Act 1927(now Forest Ordinance 2002) in the local vernacular in every town and village in the neighborhood of the land comprised in the proclamation.
24. The record reveals that no such notification has been issued prior to issuance of Notification under Section 29 of the Forest Act, 1927 and lateron Section 29 of Ordinance, 2002 however, the notification under Section 29 was issued on the basis of survey conducted in regard to forest existing in the Ex-State of Swat, somewhere in 1968.
25. No doubt, in erstwhile State of Swat all Forest were State property subject to payment of royalty amount out of proceed of sale of trees, receivable by proprietary body of land owners or right holder under prevailing custom and the same forest land, existed at the time of merger of Swat State, it was declared as Forest, to be the State property through notification dated 15.9.1972 but it is settled principle of law, that acts shall be performed in accordance with law and not otherwise at all.
26. So to conclude, this Court find it that, civil Court has got no jurisdiction to entertain or adjudicate upon matters, expressly pertaining to claim in or over the protected forest as mentioned in Section 10 or 11 of the Forest Ordinance, 2002. All claimant, who could claim any right, in term of Section 10 or 11 has to take recourse to the concern Authorities or Board, which shall be constituted by the Government for the purpose and any person, found himself or themselves, aggrieved by any decision of the Board, may invoke the jurisdiction of appellate or revisional authorities as mentioned and prescribed under the Ordinance, 2002.
27. It is pertinent to be noted that any land or waste land, which were forest before the year, 1969 and was declared u/s 29 of the Forest Act 1927, is protected forests, its status shall remain the same as it was at the time of issuance of notification u/s 29 ibid irrespective of the fact, whether the said land had cleared by people, therefrom, trees as forest also includes waste land, in terms of Section 29 of the Forest Act, 1927 and Sections 10 & 11 of the Forest Ordinance, 2002. However, the Board, may in proper mode, could determine that whether any land which was not declared as forest at the time of issuance of notification ibid has been, entered in record of rights at the conclusion of settlement in the area, such land shall be excluded therefrom the purview of Section 29 of the Act ibid and all claims of ownership shall be inquired in accordance with law as envisaged under sections 10 or 11 of the Forest Ordinance 2002, however, other rights i.e, payment of royalty, pasture and cultivation etc, could be determined strictly in accordance with law and rules. 28.For the above reasons, this revision petition (CR No.923-M/2007) is accepted and the impugned judgments of both the learned Courts below are set aside. Consequently, the plaint is returned to the plaintiffs/respondents to approach the competent forum for redressal of their grievance, if any, and if so advised.
29. So far as connected CR No.835/2007, is concerned, as the revision petition filed by Government of NWFP etc against petitioners of instant revision petition has been accepted by this Court whereby the impugned judgments of both the learned Courts below are set aside and the plaint of the petitioners (respondents in CR No.923-M/2007) has been returned, so this petition has become infructuous, hence dismissed.