RAZA ALI KHAN, J.---The captioned writ petitions raise common questions of law and facts and can conveniently be decided simultaneously , hence, were heard together and are decided through this single judgment.
The precise stand of the petitioners is that the advertisement dated 12.06.2019 and tender notice dated 29.06.2019 have been issued in violation of the Azad Jammu and Kashmir Forest Regulation Act, 1930 as amended in 2017, The Azad Jammu and Kashmir Wildlife Act, 2014 because before issuing the same no technical assessment like environmental impact, conservation status of the important plants of the area, has been conducted and for the reason that green trees have been marked by the officials of Forest Department. It is also the stand of the petitioners that the impugned advertisement/tender notice have been issued without obtaining NOC from Environmental Protection Agency , which was mandatory requirement of section 11 of the Azad Jammu and Kashmir Environmental Protection Act, 2000. It is submitted that in garb of logging and extraction of diseased and damaged trees the private contractors will cut green trees and there is no mecha nism of check and balance. It is also contended that this action of the respondents is tantamount to deprive of the people of Neelum Valley and Jhelum Valley from their rights i.e. grazing animals and using damaged wood for heating their houses. It is also contended that felling of trees will damage the friendly environment which attracts the tourists towards these areas which is a big source of income of the State and people of area. The petitioners submitted that the respondents may be restrained from cutting green trees in garb of felling and extraction of damaged/deceased trees. In the above background the petitioners in both the writ petitions have sought same relief which is reproduced as under:- "It is therefore, most respectfully prayed that by accepting the writ petition an appropriate writ may kindly be issued in favour of the petitioners that the advert ised tender Notice dated 12.06.2019 may kindly be declared illegal, void, against the environment and forest law enforced in the State territory , against the fundamental rights especially security to person of the petitioners and public at large.
It is further prayed that respondents may kindly be restrained to issue any lease in favour of any private or local political influential person, company , firm and if any may kindly be cancelled all previous lease issued by the forest department in this regard may also be declared illegal.
The respondents may kindly be directed to formulate environment/forest friendly policy with the consultation of all stakeholders of environment related institutions and civil society especially local inhabitants of the Neelum V alley.
It is further prayed that the forest of Neelum may kindly be declared as national asset and protected zone to escalate the conservation status of the forest and direction may be issued to respondents to provide the 12 Megawatt locally generated electricity on generation cost to local inhabitants as alternate to their fuel wood and energy needs.
It is further prayed that tender notice/advertisement dated 12.06.2019 may kindly be declared illegal, void, against the environmental laws, against the principles of Azad Jammu and Kashmir Forest Regulation Act 1930 as amended 2017 and the fundamental rights of public at large Article 4(1). Moreover , it is prayed that the respondent No.10 may kindly be retrained to issue the wood commercial/local on his letter head just to favour their kith and kin and political workers. The same may kindly be set aside."
Respondents have contested both the petitions by filing comments, later on, which were treated as written statement and submitted that the impugn ed advertisement/tender notice have been issued in accordance with law and in light of ban imposed by Governme nt of Azad Jammu and Kashmir on cuttin g of green trees no one can be allowed to cut green trees.
The learned counsel for the petitioners reiterated the grounds taken in the petition and in light of the stand taken by the respondents he submitted that a committee consisting of responsible officers may be constituted to look after the matter , however , he has no dispute with the impugned tender notice/advertisement to the extent of extraction of already dumped logs and fallen trees.
Mr. Muhammad Hanif Minhas, the learned counsel for the respondents clarified that diseased, decaying or dead trees are being extracted but not the green and healthy trees. He frankly submitted that he has no objection if any committee to remove the apprehension of the petitioners is constituted. Conservator Forests Circle Neelum (who is present before the Court) also filed an af fidavit that no green tree shall be marked and cut.
I have heard the learned counsel for the parties and gone through the record of the case.
In the context of the case in hand, I am reminded of the following golden quotes of two legendries of west:- "(i) A nation that destroys its soils destroy s itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people.
Franklin D. Roosevelt
(ii) For in the true nature of things, if we rightly consider , every green tree is far more glorious then if it were made of gold and silver .
Martin Luther Article 4(1) of Constitution Act, 1974 provides that "no person shall be deprived of [life or] liberty save in accordance with law". Here I deem it necessary to define and elaborate the words "life". While widely elaborating the word 'life' it also includes the healthy and friendly environment. The word 'life' has not been defined in the Constitution however , a three member bench of Supreme Court of Pakistan defined word 'Life' in [PLD 1994 Supreme Court 693] as under:- "The word "Life" is very significant as it covers all the facets of human existence. The word life has not been defined in the constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity legally and constitutionally ."
Hon'ble Supreme Court of Pakistan further observed that:- `Word life in the constitution has not been used in limited manner , a wide meaning should be given to enable a man not only to sustain life but to enjoy it."
The right to the people to live in clean and healthy environment is basic and universally accepted fundamental right of human being, life with minimum disturbance of ecology balance and without available hazard to them and to their cattle, house and agriculture land. Deforestation has affected the climate which directly affects the human life.
Temperature is rising tremendously which has to led to the melting of glaciers, weather changes and earthquakes.
The trees hold the earth firmly and due to forest depletion the grip of the earth is loosing which causes frequent landslides and earthquakes. All these factors indicate that forests, natural resource s, which are being destroyed by the human for their use, are necessary for existence of human being. We should conserve this natural resource as it is one of the fundamental constituents for the sustainability of the life on the earth. Forests are lifeline; we all depend upon forests in some way or the other for survival. Forests provide us with fresh air.to breathe, food, medicine and other sources like wood, fodder and other materials. Along with these essential products forests also play an important role in protecting our environment by:- > promoting rainfall; > reduce noise pollution; > maintain the ecological balance; > provide moisture and lower the temperature; > prevent floods by slowing down the water movement; > prevent soil erosion and preserve and enhance the fertility of soil; > maintain the balance of carbon dioxide and oxygen in the environment; > preserve the biodiversity by providing shelter for many creatures that depends upon the forests for their survival; > Provide pollinators for fertilization of agricultural crops; The respondents have categorically submitted that no green tree shall be allowed to cut as the Govt. have already imposed a ban on cutting of green tree, however , they failed to deny or furnish the reasons that despite the ban, the forests are constantly decreasing day by day instead of increasing. It is also in my judicial notice that millions of rupees are spent every year on plantation of trees but the constant decrease in forests alarmingly warns that the most valuable asset of the State has been endangered. Forestry is the second largest source of revenue and is contributing 27.45% of the income of the State and provides direct employment to 16,000 persons. The forests are spread over only 379000 hectors or 28.5% of the land/area of the State out of which only 40.6% are productive forests while the remaining 59.4% area is thinly stocked. The annual demand of timber and wood is 46.60 million cubic feet which far exceeds the estimated sustainable harvest levels of 24.1 million cubic feet. In 1997, the Azad Jammu and Kashmir Government banned logging except harvesting of wind fallen and dried trees but in view of the constant deforestation it stands established that the illegal logging continued for which primary responsibility lies upon the inefficiency , malpractices and mal-administration of the Forest Depar tment. The natural regeneration of the forests is non-existence due to uncontrolled grazing by livestock and the logging of wind fallen and dried trees without proper measures to protect the regeneration.
It has been noticed that forest management plans have expired and the process of revision is very slow. There is no Forest policy except the directives issued from time to time. The Azad Jammu and Kashmir Logging and Sawmilling Corporation (AKLASC) was established in 1968 to (a) improve logging practices and prevent damages to forest and soil (b) established wood based industries in Azad Jammu and Kashmir and (c)introduce mechanical methods of timber extraction. Unfortunately , AKLASC has not been successful in achieving its objectives especially it miserably failed to prevent damage to forests.
Azad Jammu and Kashmir is rich in plants used for wood and medicinal purpose s but only 21 species are being harvested commercially . There is no recent estimate of quantities of medicinal plants available for harvest except a survey conducted in late 1980s which estimated annual production of 316000 metric tons of dry weight. The harvesting of medicinal plants is through auction without any assessment of habitat of medicinal plants nor there are any controlling/governing measures for their sustainable collection/ extraction. The collection and value chain addition of NTFPs can create green jobs and improve local livelihoods; but no attention is being paid to this sector .
The results of temporal analysis of forest cover using Satellite imagery shows that over the period of last 17 years, the dense forests cove; decreased by 12.5% while during the same period the cover of sparse forest also decreased from 16.9% to 11.2% which means a decrease of 33.7%. Available statics deposed that the existing state of environment of Azad Jammu and Kashmir is bad and is under the proce ss of deterioration consistently , despite the ban imposed on cutting and extraction of green trees for over 22 years. The aforementioned state of affairs reflects that the respondents have failed to take into consideration that the deforestation directly infringes the right of life of the State Subjects which is the most fundamental of their fundamental rights guaranteed under the Interim Constitution 1974. The forest comprise 31% of the total land mass of the earth and are vital in the absorption of carbon dioxide emissions to filter the air we breath and also produce valuable oxygen which is essential for the very existence of life. It is worth mentioning that more than 2 billion people around the world rely on forest which provide them food, shelter , clothing, fresh water , fuel, security and traditional medicines. Moreover , biodiversity too mainly depends upon the forests as 80% of the world territorial biodiversity is found in forests.
Unfortunately , the world is gradually loosing its forests as according to statistics about half of the world's tropical forests have been cleared and annually 6% to 12% of the global forests are lost. Statics showing loss of forests is much more alarming as according to United Nations Food and Agriculture Organization (FAO), we loose 7 million hectors of forests every year and whole the loss is attributed to human activities.
It is also pertinent to mention here that for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution, promotion of sustainable developm ent, and for matters connected therewith and incidental there to the Azad Jammu and Kashmir Environmental Protection Act, 2000 was enacted vide Act IV of 2000 on 11th October , 2000. Under section 5 of the Act Environ mental Protection Agency was established, whose functions have been enumerated in section 6 of the Act. Under section 6(m) the Environmental Protection Agency is duty bound to render advice and assistance in environmental matters as may be required.
Under section 11 of the Act if any project is likely to cause any adverse environmental effect, before commencement of such project the appro val of the agency is necessary . In this case the petitioners took specific stand that the impugned tender notices have been published without NOC of Environmental Protection Agency , as was required under section 11 of the Azad Jammu and Kashmir Environmental Protection Act, 2000. On Court notice the EPA made oral statement that A respondents have obtained NOC from the agency . On this stand of the Agency , the Agency was directed to submit detailed report that how much fallen trees are necessary to be kept on land to maintain the ecosystem and biodiversity but unfortunately the Agency without any spot inspection and detailed examination submitted that the impugned advertisement/tender notice have been issued after obtaining NOC from the agency . This attitude of the respondents is also violative of section 6(m) of the Act and is disappointing that EPA has completely failed to play the role it was supposed to play under Environmental Protection Act to protect and safeguard the environment and biodiversity dependent upon the forests.
The crux of the above discussion is that the writ petitions stand disposed of in the following manners:-
1. A comprehensive Forest policy shall be formulated while declaring the Forests a 'Precious Natural Resource' of the State which provides an array of vital ecosystem services to the people of Azad Jammu and Kashmir .
2. The Forest Department shall prepare Forest Management Plan in line with world's best practices happened to protect, conserve, enhance and improve this precious natural resource. For the purpose, the Forest Department may consult with Pakistan Forest Institute Peshawar for scientific management plans.
3. A remote sensing compatible forest map of Azad Jammu and Kashmir showing diversity of types and revise the code for the preparation of sustainable Forest Management Plans employing GIS (Geographic Information System)
Technologies that can be quickly updated for adaptive management to adjust the emerging environmental and socio-economic challenges.
4. To achieve the purpose of direction issued in preceding para No.3, the Forest Department shall establish and institutionalize a state-of-the-art GIS and Remote Sensing Lab.
5. Establish a GIS (Geographic Information System) based baseline for assessment and prepare a Forest Report every five years.
6. Till the time Forest Department establishes its own GIS and Remote Sensing Lab, the Land Use Planning shall be engaged to achieve the purpose of directions given in preceding paras Nos.3, 4 and 5.
7. To ensure the regeneration and its protection, the Forest Department shall regulate/manage grazing through a specific wing of Forest Department and reasonable financial arrangements shall be made as part of normal budget to protect forests from fire during fire season.
8. A full fledge extension wing in each district with all necessary requirements should be established whose function will be:
(a) To create awareness among public about green and clean environment;
(b) To formulate village forest protection committees by involving all the segments of society .
9. No infrastructure in jungle be allowed without NOC of EP A.
10. The Forest resource and wildlife provide enormous prospect of Ecotourism, which has not been exploited to its full potential in Azad Jammu and Kashmir so for unfortunately . The Wildlife Department in this respect is directed to undertake the following measures on urgent basis:- a. Preparation/Updation Wildlife inventory of Azad Jammu and Kashmir on scienti fic grounds with special mention of endemic, vulnerable, endangered and critically endangered (red list species) with an account of species already extinct from Azad Jammu and Kashmir . b. Preparation and accordingly submitting the current status of Protected Areas of Azad Jammu and Kashmir . c. Identifying the existing or marking new areas, to be declared as Protected, for the promotion of Ecotourism. The Wildlife Department in this regard shall submit a comprehensive plan for the promotion of Ecotourism in Azad Jammu and Kashmir .
The respondents are also directed to take the following measures:
(1) (i) Use of timber in construction of all Govt. building should be banned and minimize domestic use of timber in buildings construction up to the lowest level by availing substitutes for that purpose;
(ii) A total ban on use of wood in suspension bridges be imposed and steel plates be used instead of wood;
(iii) The Central Design Office be prohibited by the Government to design any government building wish wooden beams/trusses rather buildings be designed with steel trusses.
(iv) A complete ban on use of wooden chowkat/framer of doors and windows for government buildings be imposed and steel and aluminum be used.
2. 100% extraction of all fallen trees and converted logs be ensured within period mentioned in invited lease agreement. No extension shall be allowed after expiry of period mentioned in invited lease agreement. The contractor shall be responsible for loss to un-extracted timbers in forest due to delay except delay due to natural calamities.
3. No marking/extraction of dead, fallen trees shall be allowed in part of forest where natural regeneration is profusely emerging to avoid the damage of young seedling in logging operation.
4. In compartments where natural regeneration is absent must be supplemented with artificial planting and further extraction shall be suspended till the establishment of regeneration.
5. A complete ban on sawing units and wood processing units registered or renewed against rule 4, sub-Rule 2(d)
(c) of Azad Jammu and Kashmir Registration of Sawing Units, Wood Processing Units and Sale Depots Rules, 2015, amended in 2015 be imposed,
6. The timber on subsidized rate to local and commercial consumer shall be issued as per quota already sanctioned by the Govt. with the concurrence of the Finance Department notified in the Govt. Gazette,
7. The Forest Department should ensure that videography of each beat where felling (legally marked) is to be done, separately at regular intervals to clearly allocate the condition and state of the forest before felling and after felling.
8. Forest Department should also ensu re that sufficient number of healthy saplings are planted for proper regeneration of new forest.
So for, tender notices dated 12.06.2019 and 29.06.2019 called in question by the petitioners are concerned, already cut trees dumped in shape of logs are permitted to extract and transp ort, however , trees marked as diseased, dry, decayed or damaged, shall not be allowed to cut until committee comprising of the District Forests Officer, Muzaf farabad, (Chairman), Assistant Commissioner of concerned sub-division (Member) and a representative of EPA not below to grade B-17 (Member) makes spot inspection and ensures that no green tree has been marked. The petitioners and public at large are at liberty to bring into the notice of the committee if any green tree is marked and in case of none action by the committee may approach this Court, The Govt. shall ensure the compliance of all the above directions within 6 months from the date of receipt of this judgment. A copy of the judgment shall be sent to Chief Secretary and of ficial respondents for compliance.