Muhammad Younis Thaheem, J--Since through instant writ petition Bearing No, 593-M of 2014 titled "Haji Amir Rahman & others vs. Gout: of Khyber Pakhtunkhwa & others" and connected Writ Petition Bearing No, 192-M of 2016 titled "Aurang Zeb & others vs. Govt: of Khyber Pakhtunkhwa & others", the petitioners of both the connected petition's have challenged the impugned Notification No, SO (Tech)/ED/V-105/2013/Vo1:VIII/431-440 dated 24/25.
01.2014 issued by Respondent No, 1, video which the government/respondents imposed duty/tax etc upon the local transport of `Banafsha' and Washrooms' (Guchi), therefore, these both are disposed of by way of this single judgment.
2. Brief facts of the cases are that petitioners are local inhabitants of District Swat, Malakand Division and running business of medicinal herb's `Banafsha' and 'Black Mushrooms' locally known as `Guchi'. The Respondent No, -1 .i,e, Govt: of Khyber Pakhtunkhwa through Secretary Forest and Environmental Department, Peshawar issued the above-referred impugned notification and imposed duty/tax or compensation upon the local transporters of `Banafsha' and said `Mashrooms'.
3. The respondents were put on notice, who submitted their comments, wherein' it has been mentioned that the impugned notification has been issued in light of provision of the powers vested video Sections 110 & 115 of the Khyber Pakhtunkhwa Forest. Ordinance, 2002 with adding information that Mushrooms and medicinal plants of `Banafsha' have been . a Forest Produce and squarely comes within the ambit of Section 2(19) b(ii) of Khyber Pakhtunkhwa Forest Ordinance, 2002 read with Rule 2 (1), of the Khyber Pakhtunkhwa Compensation for Forests Offences And Value of Case Property Rules, 2004.
4. The main stance of the petitioners is that the medicinal herbs of `Banafsha' and Mashrooms' do not come under the ambit of Forest Produce, as `Banafsha' is herb, while `mashrooms' is considered as vegetable. In this regard, they also relied upon certain notifications placed on record, wherein it has been stated that after promulgation of the Forest Ordinance, 2002; the provincial government issued two ' -Notifications on 15.02.2005 & 22.12.2005, wherein levy of duty/tax on the `Banafsha' and Washrooms' had been deleted, thus, the impugned-notification by itself is contrary to ibid Forest Ordinance, 2002.
5. The respondents 'submitted their comments. In this respect Para No, 3 of the comments is reproduced as under: "3. Para No, 3 is incorrect and baseless hence denied. The Notification has been issued as per provision of the power vested video Sections 110 and 115 of the Khyber Pakhtunkhwa Forest Ordinance 2002 "Annexure-A" read with Rule-2, (1), of the Khyber Pakhtunkhwa Compensation for Forests Offence and value of case property Rule, 2004 "Annexure-B"
6. Similarly, reply to grounds I & j of writ petition are given as below: "Para (i) is incorrect. The Mushrooms and medicinal plants (Banafsha) have been listed as Forest Produce within the purview of Section 2(19) b (ii) of Khyber Pakhtunkhwa Forest Ordinance 2002 "Annexure-E". Furthermore, the Mushrooms and medicinal plants are mainly growing in Natural Forests."
"Para (J) is incorrect. There are variety of Mshrooms growing naturally in Pakistan. Ghuchi (Morchella esculenta) grows naturally in the forest between 1800 to 3600 meters altitude from main sea level. Its habitats are often distinguished by the dominance of Forests trees species .i,e, Rantol, (Rhondodendron arborertum), Barmi (Taxus baccata),. Biar (Pinus wallichiana, Deodar (Cedrus deodara) Bhurj (Betula utilis), Juniper (Cupressus Juniperus), and important medicinal and aromatic plants. There are several scientific studies/research articles which are available on www.Google.Com. One of the general article " Morchella esculenta (Guchi) Need for scientific intervention for its cultivation in Central Himalya" is Annexure-F. One of the Mushrooms species namely "Morthella beliciosa" can grow on a very small scale in the fields of sugarcane naturally due to transportation of its spores (seeds) through irrigation water from high hills. These species have very lesser market value and of no export quality as compare to Guchi (Morchella. Esculenta).
Therefore, the plea of the petitioners is baseless and incorrect as the Government of Khyber Pakhtunkhwa is only authorized to impose production duty on Mushrooms."
7. According to the comments and arguments of learned A.A.G. The 'Mushrooms' and `Banafsha' are Forest Produce in view of Khyber Pakhtunkhwa Forest Ordinance, 2002 while issuance of notification under aforesaid Ordinance is the sole prerogative and within the powers of provincial government under Sections 56, 110 & 115, who is authorized to issue notifications in the public interest from time. To time. So, provincial government had in the light of the above stated parameters issued Notification No,. SO (Tech)ED/V105/2013/Vol; VIII .Dated 25.01.2014 under Sections 110 & 115 of the Khyber Pakhtunkhwa Forest Rules, relevant portion of the same is reproduced as under:
(ii) In Column No, 2 & 3 against Serial No, 6 for the existing entries in clause (b), the following duty/tax shall respectively be substituted namely: Possession of Forest Produce
(b) Medicinal herbs and morels (green)
(i) All Medicinal herbs and 100 per Kg
(ii) Black mushroom (Guchi) 500 per Kg
8. Likewise, under Section 56 of Khyber Pakhtunkhwa Forest Ordinance, 2002, the government is authorized to levy a duty, the same rule is given as below: "56. Duty and forest development charges on timber and other forest produce:
(1) Government may, by notification, levy a duty or forest development charges, or both in such manner, at such places and at such rates as may be prescribed on any timber or other forest produce which is.
(a) produced in the Province, or
(b) brought from any place outside the Province, or is transported from or through any place within the Province, or from beyond the frontier or elsewhere.
(2) In every case in which such duty or forest development charges, or both, are directed to be levied ad valoreni, Government may fix, by notification, the value on which such duty or forest development charges, or both, shall be assessed.
(3) All duties on timber or other produce listed in Schedule-1 and all forest development charges, or both, which at the time when this Ordinance comes into force, are levied therein under the authority of Government, shall be deemed to have been duly levied under the provisions of this Ordinance: ' Provided that the fees and forest development charges so levied shall not exceed in any case a fair estimate of twenty-five percent of the average market price -ealizahle on the sales.
(4) The amount realized from duties and forest development charges shall be -credited to the Forest Development Fund.
10. In the same sequence of comprehension, Section 110 of Forest Ordinance, 2002 is reproduced for ready reference as under:
110. Compounding of offence and payment of compensation... (1) A Forest Officer met below the rank of Divisional Forest Officer, on the application of the accused, may compound a forest offence in accordance with such procedure as may be prescribed.
(a)........
(b) release any property seized . As liable to confiscation under clause (a) or (b) of sub-section (1) of section 77, on payment of the value thereof including compensation for the timber or forest produce, notified by Government.
Underline is our to emphasize.
11. In light of the above discussed position, the only question, which needs to be dealt with by this Court is as to whether the 'Black Mashrooms' and `Banafsha' fall within purview of 'forest produce' or not and Neather respondents/Department is authorized to issue such notification under Forest Ordinance, 2002.
12. First of ail. It is pertinent to clarify here that there are numerous types of Mushrooms naturally grown in whole of Pakistan with distinct botanical nomenclatures and some special kind in the high snowfall area of Swat, Malakand Division, Khyber Pakhtunkhwa with botanically named as for chella esculene and in native Pashto language as `Guchi'.
13. The provisions given in Section 2 (19) b (ii) of Khyber. Pakhtunkhwa Forest Ordinance, 2002 are very much relevant provisions of the ibid Ordinance, wherein the Mushrooms and medicinal plants `Banafsha' have been shown as 'Forest Produce'. Relevant provision of law is reproduced as under:- - Section 2(19) (b):--
(19) "forest produce" includes:
(a) the following wherever found timber, bark, charcoal, gum, natural varnish, resin, rosin, lac, wax, wood-oil and derivatives theerof:-- .
(b) the following when found in, or brought from a forest:
(i) trees, leaves, flowers, fruits, seeds, roots and all other parts or produce of trees including fuel wood;
(ii) plants, not being trees, including grasses, creepers, reeds, mosses, mushrooms, medicinal plants and brushwood, and all parts or produce of such plants and other non-wood produce.
(iii) .......................
(iv) .......................
Underline is our to emphasize.
14. According to above-referred provision of taw, Banafsha' is a medicinal herb and `Guchi'
(Morchella esculenta) is a kind of Washrooms' and both are forest produce.
15. As far as issuance of notification in respect imposing of duty is concerned, the promulgation of notifications is sole discretion/prerogative of governmental authorities, who under the law .
Envisaged under Sections 56, 110 & 115 of Forest Ordinance, 2002 had 'been delegated power to issue notification in the public interest at large and can take a step in order to boost up the governmental revenue resources. So, the arguments advanced by the learned counsel for the petitioners that through delegated legislation duty or tax could not be imposed and if is imposed ultra wires that is not convincing arguments. In this respect wisdom is derived from the judgment of this Court in case titled as "Khalid Mahmood vs N.W.F.P through Chief Secretary, Peshawar and 4 others" (PLD 2011 Peshawar 120). Relent part of the above referred judgment is reproduced as under:
9. Reading Section 56 of the Ordinance, reveals that the legislature has delegated the authority to the provincial government to levy a duty, inter alia, on impart of timber into the province. This is "delegated" or "subordinate" legislation. The concept of "delegated legislation", has gained momentum with the mushroom population growth, the dire need for "good governance" and the ultimate aim to cater for the essential basis needs of every segment of the society to bolster and fulfill the attributes of a "Islamic welfare State".
Surely, the present day parliament cannot possibly legislate on each and every detail of the vast legislative needs, hence the "delegated legislation", whereby the legislature through legislation delegates to the government or any other specified authority to legislate through rules, regulations, orders, instructions or any other instrument in conformity with the dictates of the parent statute.
What is important to note is that "delegated legislation" can surely be challenged on the grounds of being excessive, beyond the authority of the parent statute, further sub-delegating what was delegated by the parent statute and finally that the same was not properly made public to all.
16. Learned counsel for the petitioners though argued their cases with utmost zest and zeal but failed to distinguish their cases, in a sense that 'Black Mushrooms' (Guchi) .i,e, Morchella esculenta and medicinal plants "Banafsha' do not come within the ambit of 'Forest Produce' and are vegetable ordinarily could be cultivated in extreme cold area of Northern Pakistan or the Respondent No, 1 has bypassed its authority, while issuing notification for levy of duty on it. If the.
Petitioners are adamant over the assertion that the `Banafsha' and `Black Mushrooms' (Ghuchi) i,e, Morchella esculenta are not Forest Produce and are vegetables, then it would be ascertained by adducing evidence and this Court in its constitutional jurisdiction could not intervene to resolve such hypothetical factual controversy.
17. In view of what has been discussed above, 'both the petitions being bereft of merit stand dismissed.