WIQAR AHMAD, J. This order is directed to dispose of the instant writ petition as well as connected W.P No. 287- M/2016, W.P No. 358-Mi 2016, W.P No. 699-M/2016, W.P No. 353-M/2017, W.P No. 612-M/2019, W.P No. 613- M/2019, W.P No. 880-M/2019, W.P No. 974-M/2019, W.P No. 1245-M/2019, W.P No. 627-M/2020, W.P No. 57- M/2021, W.P No. 166-M/2021, C.R No. 43-M/2015 and C.R No. 103-M/2016, as common questions of law were requiring answers in all these cases.
2. The issues in all these cases had arisen after a Single Member Bench of this Court had decided in its judgment given in the case of Provincial Government of NWFP through Chief Secretary and 5 others vs. Mohammad Razia and 13 others reported as 2017 CLC 908 that jurisdiction of a civil Court to entertain any dispute relating to forest had been barred by Section 92 of the Khyber Pakhtunkhwa Forest Ordinance, 2002 (hereinafter referred to as the "Forest Ordinance") and that such controversy would fall in the jurisdiction of the Forest Settlement Board (hereinafter referred to as the "Board"), which could be constituted under section 5 of the Forest Ordinance for the purpose and tasked with adjudication of such like disputes. In some of the cases, the civil Courts below had rejected plaint under Order VII Rule 11 CPC while in others, it had been returned. In other cases, petitioners have filed their constitutional petitions directly before this Court for issuance of directions to respondents for constitution of the Board for settlement of their disputes. Brief facts of each of the clubbed petitions, relevant for disposal of the petitions, are given hereunder;
3. W.P No. 551-M/2017 (Moambar vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioner has filed the constitutional petition with the prayer that respondents may be directed to constitute the Board under the Forest Ordinance. Petitioner has also prayed for issuance of direction to respondents for constitution of appellate forum under section 17 of the Forest Ordinance. He has contended in his writ petition that this Court while rendering judgment in the case of Provincial Government of NWFP supra has held that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance but he had been aggrieved of entry of his personal property as protected forest in the revenue record for which the only forum available had been that of the Board, which had been nonexistent. He has accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 and the appellate forum under section 17 of the. Forest Ordinance.
4. W.P No. 287-M/2016 (Shah Zaman Khan vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioner has filed the constitutional petition with the prayer that respondents may be directed to carry out an inquiry under section 29 (4) of the Forest Ordinance in respect of the disputed property. He has contended in his writ petition that the property in dispute had been purchased by him in the year 1978 from one Abdul Matin vide registered sale deed dated 07.03.1978 but said property had wrongly been entered in the revenue record as protected forest. He also contended that despite repeated requests, respondents had not entered his name in the column of ownership in the revenue record and no inquiry under section 29 (3) of the Forest Act had been carried out as well. He further contended that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance, he therefore approached this Court through the instant constitutional petition, with the stated prayer.
5. W.P No. 358-M/2016 (Sarfaraz Khan vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to constitute the Board under the Forest Ordinance. They have contended in their writ petition that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance but they had been aggrieved of entry of their ancestral property as protected forest in the revenue record for which the only forum available had been that of the Board, which had been nonexistent. They have accordingly prayed for issuance of direction to the concerned respondents for conducting inquiry under section 29 (4) of the Forest Ordinance as well as establishment of the Board under section 5 of the Forest Ordinance.
6. W.P No. 699-M/2016 (Kamal Ahmad and others vs. Government of Khyber Pakhtunlchwa through Forest Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to constitute the Board and conduct impartial inquiry under the Forest Ordinance. They have contended in their writ petition that they had been co-owners in the property comprised of Khasra No. 4628 to the extent of 137 Kanals 13 Marlas but said property had wrongly been entered in the revenue record as protected forest. They had also filed a suit for declaration etc in respect of same property but their plaint was rejected under Order VII Rule 11 CPC by the learned civil Court vide its order dated 13.05.2015 for the reason that same had been barred by law and had not been disclosing a cause of action. They were however directed to approach proper forum for redressal of their grievance. In light of that direction, they had filed an application before the Worthy Secretary Forest for constitution of the Board as well as conducting of impartial inquiry under the Forest Ordinance in respect of the property in dispute but to no avail. They have accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 (c) read with sections 29 and 92 as well as conducting impartial inquiry under section 29 (4) of the Forest Ordinance.
7. W.P No. 353-M/2017 (Khan Muhammad vs. Government of Khyber Pakhtunkhwa through Forest Secretary and others); Petitioner has filed the constitutional petition with the prayer that respondents may be directed to constitute the Board and conduct impartial inquiry under the Forest Ordinance. He has contended in his writ petition that he had been owner in the property comprised of Khasra No. 4628 to the extent of 38 Kanals 10 Marlas but said property had wrongly been entered in the revenue record as protected forest. He had also filed a suit for declaration etc in respect of same property but the plaint was returned to him by the learned civil Court vide its order dated 24.10.2012 for the reason that jurisdiction of the Court had been barred by Section 92 of the Ordinance. He had also filed an application before the Secretary Forest for constitution of the Board as well as conducting of impartial inquiry under the Forest Ordinance in respect of the property in dispute but to no avail. He has accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 (c) read with sections 29 and 92 of the Forest Ordinance as well as conducting impartial inquiry.
8. W.P No. 612-M/2019 (Rustam Khan and others vs. Government of Khyber Palchtunkhwa through Secretary Forest and others); Petitioners had filed a suit for declaration etc in representative capacity in the Court of Senior Civil Judge Swat to the effect that they had been owners and in possession of the property in dispute (fully described in heading of the plaint) and that defendants had no right to enter it in the revenue record as protected forest. The learned civil Court returned the plaint to plaintiffs (petitioners herein) vide its order dated 20.02.2019 for the reason that jurisdiction of the Court had been barred by Section 92 of the Ordinance in view of the law laid down by this Court in the case of Provincial Government of NWFP supra. Plaintiffs were however directed to approach the proper forum. Appeal filed there- against was also dismissed by the learned appellate Court vide its order dated 09.04.2019. They have thereafter filed the instant constitutional petition and prayed for remanding the case back to the civil Court for decision on merits. They have also prayed for establishment of the Board under the Forest Ordinance, in the alternative.
9. W.P No. 613-M/2019 (Sher Muhammad Khan and others vs. Government of Khyber Pakhtunkhwa through Secretary Forest and others); Petitioners had filed a suit for declaration etc in representative capacity in the Court of Senior Civil Judge Swat to the effect that they had been owners and in possession of the property in dispute (fully described in heading of the plaint) and that defendants had no right to enter it in the revenue record as protected forest. The learned civil Court returned the plaint to plaintiffs (petitioners herein) vide its order dated 20.02.2019 for the reason that jurisdiction of the Court had been barred by Section 92 of the Ordinance in view of the law laid down by this Court in the case of Provincial Government of NWFP supra. Plaintiffs were however directed to approach the proper forum. Appeal filed there- against was also dismissed by the learned appellate Court vide its order dated 19.04.2019. They have thereafter filed the instant constitutional petition and prayed for remanding the case back to the civil Court for decision on merits. They have also prayed for establishment of the Board under the Forest Ordinance, in the alternative.
10. W.P No. 880-M/2019 (Azam Khan and others vs. Government of Khyber Pakhtunkhwa through Forest Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to conduct inquiry or constitute the Board under the Forest Ordinance. They have contended in their writ petition that they had been owners of the property situated in Moza Taal Tehsil Kabal, upon which they had also constructed houses and made improvements. They have also contended that when respondents had started illegal interference in their property they filed an application before respondent No. 3 for establishment of the Board as well as conducting inquiry under the Forest Ordinance but to no avail. They have accordingly prayed for issuance of direction to the concerned respondents for establishment of the Board under section 5 (c) and conducting inquiry under section 29 (4) of the Forest Ordinance.
11. W.P No. 974-M/2019 (Bakht Zada and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to carry out an inquiry under the Forest Ordinance in respect of the disputed property. They have contended in their writ petition that they had been ancestral owners in the property in dispute to the extent of 2/5 shares but said property had wrongly been entered in the revenue record as protected forest. They have also contended that despite repeated requests, respondents had not entered their names in the column of ownership in the revenue record and no inquiry under the Forest Act had been carried out as well. They have further contended that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance. They have accordingly prayed for issuance of directions to the concerned respondents for conducting an inquiry under section 29 (4) of the Forest Ordinance in respect of the suit property.
12. W.P No. 1245-M/2019 (Bakht Zada and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioners have filed the constitutional petition with the prayer that respondents may be directed to carry out an inquiry under the Forest Ordinance in respect of the disputed property. They have contended in their writ petition that they had been ancestral owners in the property in dispute to the extent of 2/5 shares but said property had wrongly been entered in the revenue record as protected forest. They have also contended that despite repeated requests, respondents had not entered their names in the column of ownership in the revenue record and no inquiry under the Forest Act had been carried out as well. They have further contended that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 of the Forest Ordinance. They have accordingly prayed for issuance of directions to the concerned respondents for conducting an inquiry under section 29 (4) of the Forest Ordinance in respect of the suit property.
13. W.P No. 627-M/2020 (Abdul Ghaffar Khan and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Plaintiffs (petitioners herein) had filed a suit for declaration as well as permanent injunction to the effect that they had been owners and in possession of the property mentioned in heading of the plaint and that it had wrongly been entered in the revenue record as protected forest, which had been concurrently dismissed by the two Courts below. This Court while accepting revision petition filed by petitioners vide its order dated 08.04.2011, had remanded the matter back to the civil Court with certain directions. Thereafter, the learned civil Court had rejected the plaint vide its order dated 29.09.2012 due to lack of jurisdiction. While relying upon earlier judgments of this Court passed in civil revision No. 463/2004 and civil revision No. 17/2011, the learned civil Court had referred the matter to Provincial Government for appointment of the Board under section 5(c) read with section 29 (4) of the Forest Ordinance to inquire into the matter by associating the petitioners. Judgment of the learned civil Court dated 29.09.2012 had not been complied with in letter and spirit by the Government, petitioners had therefore filed an execution petition, which was dismissed by the learned civil Court vide its order dated 15.07.2017 being non-maintainable. Revision petition filed there-against was also dismissed by the learned revisional Court vide the impugned judgment dated 07.11.2019. Feeling aggrieved there- from, petitioners have filed the instant constitutional petition, wherein they have prayed for issuance of directions to the civil Court for deciding the suit on merits.
14. W.P No. 57-M/2021 (Shah Jehan vs. Government of Khyber Pakhtunkhwa through Secretary Forest and others); Petitioner had filed a suit for declaration etc in the Court of Senior Civil Judge Daggar at Buner, to the effect that he had been exclusive owner of the property described in heading of the plaint and that its entry in the revenue record as protected forest had been ineffective upon his rights and had been liable to correction. The learned civil Court returned the plaint to plaintiff (petitioner herein) vide its order dated 07.12.2020 for the reason that jurisdiction of the Court had been barred by Section 11 of the Khyber Pakhtunkhwa Public Property Removal of Encroachment Act, 1977. Petitioner has contended in his writ petition that jurisdiction of the civil Court had been barred by Section 92 read with Sections 5 & 29 of the Forest Ordinance, he therefore approached this Court through the instant constitutional petition. He accordingly prayed for issuance of directions to the concerned respondents for constitution of the Board for conducting inquiry under the Forest Ordinance.
15. W.P No. 166-M/2021 (Umar Muhammad and others vs. Government of Khyber Pakhtunkhwa through Secretary Forest and others); Petitioners have contended in their writ petition that they had been owners of the property in dispute and upon some portion, they had also constructed houses. When they came to know that their property had wrongly been entered in the revenue record as protected forest, they filed an application to respondent No. 1 for establishment of the Board under the Forest Ordinance in respect of their ownership in the property in dispute but to no avail. They have also contended in their writ petition that jurisdiction of a civil Court to decide grievance of petitioner, had been barred by Section 92 read with Sections 5 and 29 of the Forest Ordinance. They have accordingly prayed for issuance of direction to the concerned respondents for constitution of the Board and conducting inquiry under the Forest Ordinance.
16. C.R No. 43-M/2015 (Syed Azim Shah vs. Assistant Commissioner Forest and others); Petitioner had filed a suit for declaration to the effect that he had been owner in the property laying in Khasra No. 748 of the concerned moza to the extent of 25 Kanals but said property had wrongly been entered in the revenue record as protected forest. Petitioner had earlier filed a suit in the Court of Senior Civil Judge_ Swat, which had been proceeded on merits and finally dismissed vide judgment and decree dated 05.11.2009 of the learned civil Court. Said judgment and decree had been maintained upto this Court. He subsequently filed another suit on 03.07.2014 in the Court of Senior Civil Judge, Swat. His subsequent suit was summarily rejected by the learned civil Court vide its order dated 26.07.2014 being barred by law. Feeling aggrieved there-from, petitioner has filed an appeal, which was also dismissed by the learned appellate Court vide its order dated 15.01.2015. He then approached this Court through the instant civil revision, wherein he has requested for setting aside judgments of the two Courts below and prayed for decreeing his suit.
17. C.R No. 103-M/2016 (Ihsanullah and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others); Petitioner had filed a suit for declaration etc to the effect that they had been ancestral owners of the property comprised of Khasra Nos. 30 & 31 to the extent of 22 Kanals, which had been purchased by their predecessor vide sale deed dated 30.10.1955 but it had wrongly been entered in the revenue record as protected forest. The learned civil Court while relying upon earlier judgment of this Court passed in C.R No. 153/2004, had returned the plaint to plaintiffs due to lack of jurisdiction vide its order dated 04.03.2015. Their appeal filed against judgment of learned civil Court was also dismissed by the learned Additional District Judge-VI, Swat vide his order dated 18.02.2016. Feeling aggrieved there- from, they have filed the instant civil revision, wherein they have prayed for remanding the case back to civil Court for decision on merits.
18. Arguments heard and record perused.
19. We would first like to address the following legal questions arising out of the above reproduced facts; a) Whether the Board provided under section 5 of the Forest Ordinance as a forum for settlement of disputes has been a continuous phenomenon to which any dispute arising at any time may be referred and settled there under or same is relevant at the time when a forest is declared as reserved or protected forest for the first time? b) Whether the bar of jurisdiction contained in Section 92 of the Forest Ordinance would be an absolute bar, debarring any civil suit, wherein certain rights are claimed in immovable property and in defence, it is alleged that the property had ever been declared as protected or reserved forest?
(c) What forum would be available to a person whose property is wrongly claimed as reserved or protected forest?
20. Determination of question (a): (Whether the Board provided under section 5 of the Forest Ordinance as a forum for settlement of dispute has been a continuous phenomenon to which any dispute arising at any time may be referred and settled there-under or same is relevant at the time when a forest is declared as reserved or protected forest for the first time?
Clause (c) of subsection (1) of Section 5 of the Forest Ordinance has provided for constitution of the Board. Section 5 is contained in Chapter-II (i.e. Reserved Forests) of the Forest Ordinance. Sections 4, 5, 6 & 7 of the Forest Ordinance would be relevant for our present discourse, same are therefore reproduced hereunder for ready reference;
4. Power to declare reserved forest.---Government may declare any forest land or wasteland which is the property of Government, or over which Government has proprietary rights, or to the whole, or any part of the forest produce, of which the Government is entitled, as a reserved forest in the manner hereinafter provided.
5. Notification by Government.---(1) Whenever it has been decided to constitute any land as a reserved forest, Government shall, by notification in the Official Gazette,- a) declare that it has been decided to constitute such land as a reserved forest; b) specify, as nearly as possible, the situation and limit of such land by roads, rivers, streams, ridges or other well known or readily intelligible boundaries; and c) appoint a Forest Settlement Board hereinafter referred to as "Board", to enquire into and determine the existence, nature and extent of any rights, alleged to exist in favour of any person in or over any land comprised within such limits or forest produce therefrom, and to deal with the same as provided in this Chapter.
(2) The Board shall consist of the following:- i. a Revenue Officer not below the rank of a Collector; Chairman ii. the Divisional Forest Officer concerned; and Member iii. one representative of the community based organization or village-based organization. Member
(3) The representative of the community shall be selected by the concerned community.
(4) All decisions of the Board shall be taken by majority of votes.
6. Proclamation by Forest Settlement Board.--- (1) When a notification has been issued under section 5, the Board shall publish in the local vernacular in every town and village in the neighbourhood of the land comprised therein, a proclamation:- a) specifying, as nearly as possible, the situation and limits of the proposed forest; b) explaining the consequences which, as hereinafter provided, will ensue on the reservation of such forest; and c) fixing a period of not less than three months from the date of such proclamation, and requiring every person claiming any right in respect thereof either to present to the Board within such period a written notice specifying, or to appear before it and state, the nature of such right and the amount and particulars of the compensation (if any) so claimed.
(2) After the issuance of notification under section 5, no right shall be acquired in or over the land comprised in such notification, except by succession, or under a grant, or contract in writing made or entered into by, or on behalf of Government, or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, except in accordance with such rules as may be made by Government in this behalf.
7. Inquiry by Forest Settlement Board.--- The Board shall take down in writing all statements made under section 6, and shall at some convenient place inquire into all claims duly preferred under that section, and the existence of any rights referred to in section 6 so far as the same may be ascertainable from the records of Government and the evidence of any persons likely to be acquainted with the same.
Section 4 of the Forest Ordinance has provided for powers of the Government to declare a forest as reserved forest. The section closes on the following words; "as a reserved forest in the manner hereinafter provided."
Then the sections following Section 4 have provided the mode, manner and necessary formalities for notifying a forest as reserved forest, as well as the consequences and effects of such declarations. Section 5 provides that whenever it is decided to constitute any land as a reserved forest, Government shall, by a notification in the Official Gazette declare that it has been decided to constitute such land as a reserved forest and will give a description of such land. Clause (c) of subsection 1 of Section 5 of the Forest Ordinance has provided that it shall appoint a Board to enquire into and determine the existence, nature and extent of any rights, alleged to exist in favour of any person in or over any land comprised within such limits or forest produce there-from and to deal with same as provided in Chapter-H of the Forest Ordinance. Subsection 2 of Section 5 of the Forest Ordinance has provided for composition of the Board and rest of the procedure has also been provided in subsections (3) & (4) of Section 5 as well as in Sections 6 & 7 of the Forest Ordinance. Section 8 of the Forest Ordinance has provided for powers of, the Board for the purpose of such inquiry.
21. What is important to be noted in clause (c) of Section 5 of the Forest Ordinance, is that said clause had been part of subsection (1) of Section 5 of the Forest Ordinance. It cannot be read disjunctively from rest of the text of subsection (1), wherein it has been provided that whenever it is decided to constitute any land as a reserved forest, Government shall by notification in the Official Gazette declare that it has been decided to constitute such land as a revered forest. Such a declaration is made at the time when the process for declaring such land as reserved forest is initiated for the first time.
Sections 4, 5 & 6 leave no doubt that all such activities of constitution of the Board and the procedure following therein has been provided to be carried only at the time of declaring any area as reserved forest. Section 9 of the Forest Ordinance has then provided the effect of such declaration, which is also reproduced hereunder for ready reference;
9. Extinction of rights.-- Rights in respect of which no claim has been preferred under section 6, and of the existence of which no knowledge has been acquired by inquiry under section 7, shall be extinguished, unless, before the notification under section 20 is published, the person claiming them satisfies the Board that he had sufficient cause for not preferring such claim within the period fixed under section 6.
This makes it clear that any right which is not claimed at the time of declaration being made shall seize to have been existing unless before publication of such notification an appeal is preferred under section 20 of the Forest Ordinance.
In other words, when an area is declared as reserved forest and no 'appeal has been preferred at the relevant time i.e. before publication of the notification to said effect (under section 20 of the Forest Ordinance), then no right can be claimed subsequently in a reserved forest nor can such declaration be revisited by any Board. In other words, with issuance of notification under section 20 of the Forest Ordinance, the forum of Board would become functus officio.
Section 20 of the Forest Ordinance makes the situation further clear, which is also reproduced hereunder for ready reference;
20. Notification declaring forest reserved.--
(1) When the following events have occurred, namely: a) the period fixed under section 6 for preferring claims has elapsed, and all claims, if any, made under that section or section 9 have been disposed of by the Board; b) if any such claims have been made, the period limited by section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer or the Forest T ribunal; and c) all lands (if any) to be included in the proposed forest, which the Board has, under section 11, selected to acquire under the Land Acquisition Act, 1894 (I of 1894), have become vested in Government under section 16 of that Act; Government shall publish a notification in the Official Gazette, specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.
(2) From the date so fixed such forest shall be deemed to be a reserved forest.
(3) The management of reserved forests shall for all intents and purposes be vested in the Forest Officers.
Section 23 Of the Forest Ordinance has provided that no right of any description shall be acquired in or over a reserved forest, except by succession or under a grant or contract in writing made by or on behalf of Government or some person in whom such right was vested when the notification under section 20 of the Forest Ordinance was issued. Meaning thereby that such a right of succession or other rights had to be settled by the Board or by the appellate forum, provided under section 17 of the Forest Ordinance before a notification of a reserved forest is issued under section 20 of the Forest Ordinance. Once a notification is issued under section 20 of the Forest Ordinance, the chapter is closed, according to scheme of the Forest Ordinance. All such provisions have also been pari materia to the provisions of the Forest Act, 1927.
22. It is a fact that in these areas of Malakand Division, most of the forests have been declared as protected forest, which is being governed by provisions contained in Chapter-IV of the Forest Ordinance. Subsection 5 of Section 29 of the Forek Ordinance has provided that the Government may in the interest of forest conservancy, conduct proper enquiry into the nature and extent of rights of Government and of private persons in or over protected forest, as soon as possible, after issuance of notification under sub section (1) or declaration under the proviso to sub section (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 Sections 5 to Section 21 of the Forest Ordinance. Same procedure provided for declaring a forest as a reserved forest under section 5 to Section 21 of the Forest Ordinance has also been furnished for declaring a forest as protected forest, particularly regarding the disputes that arise out of issuance of notification under subsection
(1) of Section 29 or issuance of a declaration under proviso to subsection (4) of Section 29 of the Forest Ordinance.
Section 30 has provided for declaring any trees to be reserved, close forests and may prohibit certain acts. Subsection
(2) of Section 30 has provided that all the trees on Government lands resumed by Government, or declared protected under the Forest Ordinance, or any of the laws repealed by the Forest Ordinance would be deemed to be reserved under section 30 with effect from the commencement of the Forest Ordinance. All the trees in the protected forest had already been declared reserved trees vide notification dated 22.12.1975. Said notification has also been incorporated into law on the dent of subsection (2) of Section 30 of the Forest Ordinance. Vide notification No. SOFT(FAD)V-168/71(i) dated 20.12.1975 issued under section 29 of the Forest Act 1927, all the Forests land in Chitral, Dir, Swat, Kalam and Malakand protected areas have been declared as protected forests. Text of said notification is reproduced hereunder for ready reference; "In exercise of the powers conferred by section 29 of the Forest Act, 1927 (Act, XVI of 1927), the Goveinment of North West Frontier Province are pleased to-- a) apply the provisions of Chapter IV of the said Act to all Forest-land in Chitral, Dir, Swat, Kalam and Malakand Protected Areas; and b) declare all the said forest-land as protected forests."
Additionally, the Provincial Government of Khyber Pakhtunkhwa, on the recommendations of Dir-Swat Land Disputes Enquiry Commission has also declared all forests in Swat area as State property vide their notification No. 10/16-SOTA-H/72-1521 dated 15.09.1972. Selected text of said notification is also reproduced hereunder for ready reference; "In pursuance of clause (a) of paragraph 3 of the Devolution and distribution of Property (Dir and Swat)
Regulation (Martial Law Regulation No. 122), and on the basis of the recommendations of the Dir Swat Land Disputes Enquiry Commission, and in accordance with the directions of the President, the Governor of the North-W est Frontier Province is pleased to order that:- a) the property specified in column 2 of the Schedule of this Order, and more particularly described in the file of the case specified in column 3 of the said Schedule, shall be the State property of the former State of Swat; b) all Forests 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)."
Similarly, vide the notification No. 10/16-SOTA-11/72-1520 dated 15.09.1972, all the forests situated in the former State of Dir had also been declared as State property (subject to payment of fifteen percent of their income as royalty to the local right holders). Same was the case with all forests of the State of Chitral, which had also been declared as State property. The forests in the State of Swat and Dir had been declared as protected forest, wherein rights of the right-holders had been protected, which inter-alia included .the right of royalty. It has however been rightly held in Single Member Bench judgment of this Court given in the case of Provincial Government of NWFP supra that when a forest is declared as protected forest, then its status shall remain the same as it had been at the time of issuance of notification under section 29 of the Forest Ordinance, irrespective of the fact whether said land had been made clear by the people by removing of the trees there-from. We agree with such findings in the judgment of Provincial Government of NWFP supra, but it would be difficult for this Court to agree with rest of the findings regarding the fact that the Board could determine that whether any land which was not declared as protected forest at the time of issuance of notification and entered in record of rights at the conclusion of settlement in the area, should be excluded from the purview of Section 29 ibid and that all the claims of ownership would be enquired in accordance with Sections 10 & 11 of the Forest Ordinance. The latter part of the findings given in said judgment, to our understanding, had not been based upon proper appreciation of the legal provisions discussed above. While giving such findings, it could not be realized that not only the scheme of law but the very wordings of the provisions discussed above had been manifestly clear that phenomenon of the Board had been provided when the Government had issued the first declaration under sections 4 & 5 read with Section 29 of the Forest Ordinance showing its intention to declare certain land as reserved or protected forest but once such declaration is issued under section 20 read with Section 29 of the Forest Ordinance in case of a protected forest, then the forum of Board would become functus officio and would no more retain the jurisdiction to adjudicate on such disputes. Section 32 provides for the powers of Government to declare any protected forest no longer protected.
When a forest is once declared protected and the notification to said effect is issued and published in the Official Gazette, then the power to declare any protected forest as no longer protected rests with the Government only.
Neither the Board nor any other authority can declare a protected forest no longer protected.
23. In our estimation, the question whether certain land has or has not been part of the declared protected or reserved forest, would be a question which may be raised and decided by a civil Court having territorial jurisdiction in the area. The Board has nowhere been given any power or authority to declare any entries in the revenue record to be wrong, illegal or ultra-vires or to declare questions of ownership of persons whose property has been lying outside the limits of protected or reserved forest. Such has been the exclusive domain of civil Courts vested in them by Section 9 CPC, Section 53 of the West Pakistan Land Revenue Act, Sections 42 and 54 of the Specific Relief Act and other relevant laws. No such jurisdiction has ever been vested in the forum of Board even under the provisions of the Forest Ordinance, the earlier law on the subject or any other law.
24. We can therefore safely answer the first question, that the Board may have its relevance only when the Government intends to declare any land or wasteland as a reserved or protected forest subsection (1) of Section 5 of the Forest Ordinance in case of a reserved forest and under section 29 read with subsection (1) of Section 5 of the Forest Ordinance in case of a protected forest. With the determination of all the disputes, issuance and publication of the final notification under section 20 read with Section 24 or Section 29 of the Forest Ordinance, the forum of the Board becomes functus officio and no more remains alive.
25. Determination of question (b): (Whether the bar of jurisdiction contained in Section 92 of the Forest Ordinance would be an absolute bar, debarring any civil suit, wherein certain rights are claimed in immovable property and in defence, it is alleged that the property had ever been declared as protected or reserved forest?); Section 92 of the Forest Ordinance has provided for a bar on exercise of jurisdiction by a civil Court. Sections 92 & 93 of the Forest Ordinance being relevant are reproduced hereunder for ready reference;
92. 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 there-under.
93. Jurisdiction of Forest Magistrates.---
(1) All offence cases punishable under this Ordinance and rules made there-under shall be tribal exclusively by the Forest Magistrate or in his absence by a Magistrate of First class duly empowered by the District and Sessions Judge concerned.
(2) A Forest Magistrate shall not take cognizance of an offence triable under sub section (1), except on a complaint in writing by the concerned Forest Officer, or by the concerned community-based organization, village-based organization or the Joint Forest Management Committee.
Section 92 of the Forest Ordinance provides that a civil Court shall not exercise jurisdiction for any of the matters relating to implementation of the Forest Ordinance or rules made there-under, except in situation provided in Section 93 of the Forest Ordinance. Section 93 of the Forest Ordinance had provided for jurisdiction of the Forest Magistrate to try all offences punishable under the Forest Ordinance or rules made there-under. It is quite clear from combine reading of section 92 along with section 93 of the Forest Ordinance that jurisdiction of civil Court is barred in relation to any matters relating to implementation of the Forest Ordinance or rules made there-under and the issues arising out of such implementation are required to be exclusively dealt with by a Forest Magistrate under section 93 of the Forest Ordinance. In other words, when certain steps are taken by the officers of Forest Department for implementation of the Ordinance, then such steps shall not be called in question in any civil Court.
26. Section 94 of the Forest Ordinance has provided that, all offences under the Forest Ordinance or rules made there-under would be tried summarily in accordance with the provisions of Code of Criminal Procedure, 1898.
Section 96 of the Forest Ordinance has provided for prosecution of the forest offences while Section 97 of the Forest Ordinance has provided for the forum of appeals.
27. Chapter-XI wherein Sections 92 & 93 have been contained, has dealt with the Forest Protection, Penalties and Procedure. Section 74 therein has provided for the constitution of Forest Force, Section 75 for arrest without warrant, Section 77 powers of seizure of the property liable to confiscation while Section 85 has provided for penalties and procedure. When we read Section 92 along with Section 93 and other provisions contained in Chapter-XI of the Forest Ordinance, which houses Section 92 as well, we come to the conclusion that the bar of jurisdiction has been provided so as to prevent any person being prosecuted for acquiring any liability for imposition of penalty under various provisions contained in said Chapter from questioning his prosecution or imposition of penalty before a civil Court. While interpreting statues, this has also been a relevant fact as in which part or division the legislature places a particular sections. Mr. S.M Zafar in his book Understanding Statutes has explained significance and import of putting a section in particular part of division of a statute and had also relied upon observations of Hon'ble Justice Holroyd in Australian case of Re the Commercial Bank of Australia Ltd 1(1893) 19 VLR 3 at P. 3751. Relevant part of the discussion is reproduced hereunder for ready reference; "It an Act is divided into parts and divisions, the Courts will ordinarily assume that the dividing of the Act in that way is intended to indicate that group of section in that part or in the division related to a particular subject. They will not read a section in that part or division, relating to a subject-matter that is dealt with in another part or division of the Act unless it is clear from the wording of the section that it must be read in that way and that section has therefore been placed in the wrong part of division. The reasons of dividing an Act into parts to elucidate both the objects and scope of such a division was given by Holroyd, J. in Australian case Re the Commercial Bank: of Australia Ltd: "When an Act is divided and cut into parts or heads, prima facie it is, we think: to be presumed that those heads were intended to indicate a certain group of clauses as relating to a particular object...... The object is prima facie to enable everybody who reads to discriminate as to what clauses relate to such and such a subject matter. It must perfectly be clear that a clause introduced into a part of an Act relating to one subject matter is meant to relate to other subject matters in another part of the Act we can hold that it does so."
Import and object of placing of a section in a particular division or part may not be the exclusive consideration for its interpretation and such fact may be ignored but only when wordings of the particular section has been clear in its purpose and intent. In such a situation, Mr. S.M Zafar had quoted the decision of New South Wales Supreme Court, wherein a section had occurred in a part of the Act dealing with adoption of children but the Hon'ble Court had held that it had applied to all cases of neglect or ill treatment of a child and was not limited to the neglect or ill treatment of an adopted child. But such an approach may only be adopted where the wordings of a section are itself clear or considering of placement of the section are likely to produce unintended or absurd consequences. This is not the case here. In the case in hand, considering of placement of the section in Chapter-XI had been going in synchronization with language, purpose and object of Section 92 of the Forest Ordinance. We can therefore safely consider such placement of the section in Chapter to have been intending ouster of jurisdiction of civil Court in those cases only where certain criminal proceedings are initiated against a person under Chapter-XI of the Forest Ordinance read with the rules. Same cannot be perceived to be a blanket exclusion of jurisdiction of the civil Court even in respect of questions of title.
28. There has always been a strong presumption existing against ouster of jurisdiction of civil Court. Established jurisdiction vested in a civil Court cannot be deemed to have been taken away merely by a far-fetched implication contained in some special Act. Jurisdiction of civil Court can only be taken away by express words and necessary intendments of the legislature. A, passage from Maxwell on the Interpretation of Statutes Twelfth Edition, based upon the then existing case law from British jurisdiction on the subject of presumption against ousting established jurisdiction may be quoted here-with benefit; "The proper tribunals for the determination of legal disputes in this country are the Courts and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the task." "Any one bred in the tradition of the law," said Viscount Simonds, "is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the Court, whether in order that the subject may be deprived altogether of remedy or in order that his grievance may be remitted to some tribunal." "it is," he said in another case, "a principle not by any means to be whittled down that the subject's recourse to Her Majesty's Courts for the determination of his rights is not to be excluded except by clear words. This is, as McNair J. called it in Francis v. Yiewsley and West Drayton Urban District Council, a 'fundamental rule' form which I would not for may part sanction any departure."
Mr. S.M Zafar in his book Understanding Statutes had, on the basis of case law arising out of our jurisdiction had also opined in this respect; "Section 9, of C.P.C, lays down that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
The exclusion of the jurisdiction of Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Interpretation in favor of the jurisdiction of a Civil Court should be preferred to the one for its absence."
Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another vs. Hakeem Rafiz Muhammad Ghaus and 5 others reported as PLD 1997 Supreme Court 3, had observed that ouster of jurisdiction of a civil Court may not be readily inferred. Relevant part of observations of the Hon'ble Court is reproduced hereunder for ready reference; "It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to.
It is also well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court."
Further reliance in this respect may be placed on observations of the Hon'ble Supreme Court of Pakistan given in the judgments reported as PLD 1963 Supreme Court 382, PLD 1965 Supreme Court 671 and PLD 1990 Supreme Court 1051.
29. By now Article 10-A also stands added to the Constitution through Eighteenth Amendment Act 2010, which provided that every citizen shall be treated in accordance with law and he has a right to a fair trial and due process of law in the determination of his civil rights, as well as while facing a criminal charge.
30. In other words, when a process of investigation is commenced or prosecution lodged before Forest Magistrate under the provisions of Forest Ordinance, then the civil Court would not entertain any suit challenging such investigation or preventing the prosecution thereof. Wordings of Section 92 cannot be stretched to exclude the civil jurisdiction of civil Court provided for deciding a pure question of title in some immovable property. When a person brings a plaint before a civil Court claiming therein that he had been owner and in possession of some property, which had not been part of any protected or reserved forest but is wrongly claimed to be part of such protected or reserved forest, then such question would be purely a question of civil nature involving title of a person in some immovable property and jurisdiction of civil Court has nowhere been excluded regarding determination of such question, by any provision of the Forest Ordinance. Entertaining such a suit may at times be overlapping for the reason that at the same time the Forest authorities may have initiated certain actions against a person for violation of Forest Laws but if this is the situation, then the civil Court would not be able to entertain any proceedings against the process of investigation or prosecution lodged by the Forest Officers under the provisions of the Forest Ordinance but such fact may not prevent a civil Court from adjudicating upon or entertaining a question of title. It is settled law that such provisions which provide for exclusion of jurisdiction of civil Court is to be narrowly interpreted.
Merely on the basis of a likelihood that an investigation or prosecution may simultaneously be lodged under the provisions of the Forest Ordinance would not be sufficient to totally oust jurisdiction of a civil Court even in matters of deciding the questions of title. Such likelihood may or may not happen but it cannot be presumed that it would always happen and both the Courts would be exercising overlapping jurisdiction.
Even otherwise, it is settled principle that civil and criminal proceedings can go side by side. Mere fact that certain investigation or prosecution may be lodged in some matter, would not ipso facto exclude jurisdiction of civil Court. Regarding the issue that criminal and civil proceedings may run simultaneously, reliance may be placed on judgment of the Hon'ble Supreme Court of Pakistan given in the case of Seema Fareed and others vs .The State and another reported as 2008 SCMR 839.
31. Findings of this Court given in the case of Provincial Government of NWFP supra, regarding the fact that jurisdiction of civil Court would totally be barred under section 92 of the Forest Ordinance are not found by us to be based upon a correct interpretation of Section 92 of the Forest Ordinance. Such an interpretation is neither justifiable by having resort to literal construction as wordings of Section 92 of the Forest Ordinance are itself clear nor can it be justified by having a purposive approach in reading Section 92 with other provisions of Forest Ordinance contained in Chapter-XI therein. Jurisdiction of the civil Court has expressly been provided under section 9 CPC, under section 53 of the West Pakistan Land Revenue Act, Sections 42 and 54 of the Specific Relief Act and other relevant laws. Such jurisdiction has never been excluded in the Forest Ordinance by express words or necessary implications and same cannot be presumed to have been excluded by Section 92 of the Forest Ordinance, which had limited its scope and operation to "matters relating to implementation of the Forest Ordinance or rules made there under" by express words.
32. We therefore held that the civil Court would have jurisdiction to decide upon the questions whether a particular land has been belonging to an individual and not included in any protected or reserved forest?
Cases of wrong entries in the revenue record may also be entertained by the learned civil Court under section 53 of the West Pakistan Land Revenue Act, 1967. It is however a different matter that the civil Court cannot order any notified reserved or protected forest to be de-notified, as same has fully been protected under various provisions of the Forest Ordinance and Martial Laws Regulations as discussed in detail above.
33. Determination of question (c): (What forum would be available to a person whose property is wrongly claimed as reserved or protected forest?)
Since, we have answered question No. 2 in terms that the civil Court would have jurisdiction for entertaining suit of a person whose property may be wrongly claimed by officers of the forest department or anyone else to be part of protected or reserved forest, therefore this question is also accordingly answered.
34. In light of what has been discussed above, it is held that the Board after the declaration of forest as protected forest becomes functus officio and said forum no more remains available. Same is the case with the appellate forum provided under section 17 of the Forest Ordinance, therefore no direction can be issued to the government for constitution of the Board. The respective petitioners if feel themselves aggrieved may have recourse to the appropriate forum available under the law. The orders of rejection of plaint or its return made in pursuance to Single Member Bench Judgment of this Court in the case of Provincial Government of NWFP supra being per incuriam as explained above, shall not constitute a bar in the way of institution of fresh suit, for the reason that ratio of said judgment has been re-visited hereunder. Writ petitions No. 612 and 613-M of 2019 are converted into civil revisions and allowed by setting aside judgments of both the Courts below, impugned therein, while civil revision No. 103-M/2016 is also allowed by setting aside judgments of the two Courts below impugned therein and the matters are remanded back to the learned civil Court for proceedings and deciding the same afresh according to law. So far as civil revision No. 43-M/2015 is concerned, an earlier suit filed by petitioner had been contested on merits and dismissed vide judgment and decree dated 05.11.2009 of the learned civil Court, which had got finality upto this Court. His subsequent civil suit had been rejected mainly being barred by the principle of res-judicata. No illegality or irregularity could be found in the impugned orders of two Courts below. Civil revision No. 43-M/2015 is therefore found meritless and same is accordingly dismissed.
35. Rest of the petitions are disposed of with the observations that the respective parties shall be at liberty to have recourse to the appropriate forum as explained in this judgment, which shall decide their cases according to law on the subject. The respective questions framed in earlier part of the judgment have also been answered, which shall be deemed to be part of the operative decisions of this Court taken in the instant matters.