ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-3694 & 3919 of 2014

_______________________________________________________

Date                        Order with signature of Judge

1.For Katcha Peshi.

2.For hearing of CMA No.20689/2014.

3.For hearing of CMA No.18774/2014.

 

                                                Present:-

                                                1) Mr. Justice Syed Hasan Azhar Rizvi

                                                2) Mr. Justice Azizur Rehman

 

 

Date of hearing:      06.11.2014:

 

 

M/s. Ghulam Haider Shaikh and Syed Mureed Ali Shah, Advocates for the Petitioner.

 

Mr. Farooq H. Naik, Advocate for Respondent No.2 a/w. M/s. Owais Ahmed and Shiraz, Advocates.

 

Mr. Sabtain Mahmud, learned A.A.G., Sindh.

                                                         _____________

 

 

SYED HASAN AZHAR RIZVI, J:- Through this common order we propose to dispose of both the abovenoted petitions filed by one Syed Ayaz Ali Shah Sheerazi under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, as in both the petitions the petitioner has impugned the Administrative letter No.FE&WL(SOI)13(1)Afrosforestry/ 05/06/P-X dated 14.5.2014 and subsequent letter C.XVI/7244 of 2013-14 Hyderabad dated 30.05.2014.

 

2.         It is the case of the petitioner that a summary has been moved to the respondent No.1 for approval of the distribution of more than 50,000 acres of Forest Land of ‘Thatta Afforestation Division, Badin Afforestation Division and Hyderabad Afforestation Division of the respondent No.2. It is stated in the memo of petition that aforesaid forests have precious species of plants, animals and birds and several forest villages are situated from centuries and theses forest are the only source of grazing of more than 3,00,000 cattle’s of the villages and these forests also produce timber which support the economy of the country. On 14.05.2014, respondent No.1 approved the summary vide Administrative letter No.FE&WL (SOI)13(1)Afrosforestry/05/06/P-X of respondent No.2 whereby approved M/s. Badin Agro Development Farm an additional forest area i.e. 6,300 acres in lease schedule under Agroforestry Lease Policy of Sindh vide letter No.CXVI/-7244 of 2013-14 dated 30.5.2014 and an area of 16,800 acres vide letter dated 14.5.2014 enclosed as Annexure P/1 in C.P. No.D-3919/2014.  

 

3.         The grievance of the petitioner is that the local people of these forest villages and people from other vicinity depends on livestock and used to grazing their cattle’s in these forests without harming the trees or plants and ecology, but deforestration by allotting forest land to powerful influential persons including M/s. Badin Agro Development Farm for Agricultural and fish farm purpose, have not only evicting the poor local people from forest habitat by grazing their animals for livelihood which ultimately increase poverty and subsequently the crime and the productive land will left barren and we lose another natural resource which intimidate to the natural eco system and environment of Sindh. It is further stated that the Forest Department issued leases of the aforesaid Forests to influential persons by overruling the conservation principle under so-called Notification No.FT&WL(SOI)13(1)Agroforestry for Sindh Agro-Forestry Policy, 2004 and instead of conservation they sadistically uprooted trees with heavy Cranes and Bulldozers for their vested interest even they chopped trees in other forests which never leased to them and they continuingly extended threats to the local villagers in aforesaid forests in connivance with the respondents No.2 to 6 with malafide intention. The petitioner has, therefore, prayed for the following reliefs:-

 

“a)       declare that Administrative letter No.FE&WL(SOI) 13(1) Afrosforestry/05/06/P-X dated 14.5.2014 and subsequent letter C.XVI/7244 of 2013-14 Hyderabad dated 30.5.2014 (Annexure P/1) is without lawful authority and violative of Rules, Laws and Orders dated 10.3.2011, 24.02.2014 & 27.03.2014 (Annexure P/23 to P/2) passed by this Hon’ble Court and Respondents had no jurisdiction to issue such a letter / notification concerning approval of additional areas of Forest Land;

 

b)         issue writ directing the Respondents to withdraw the letter No.FE&WL(SOI)13(1)Afroforestry/05/06/P-X dated 14.05.2014 and subsequent letter C.XVI/7244 of 2013-14 Hyderabad dated 30.5.2014 as well as any other letter / notification / approval in respect of leasing the forest land and produce all record including approvals / allotments/ leases / letter / notification / summons issued in respect of forest land;

 

c)         suspend the operation of letter No.FE&WL(SOI)13(1) Afroforestry/05/06/P-X dated 14.05.2014 and subsequent letter C.XVI/7244 of 2013-14 Hyderabad dated 30.5.2014 or any other letter / notification / approval issued in respect of leasing the forest and under so called Agro Forestry Lease Policy 2004;

 

d)         restrain the Respondents from deforestration and illegal allotment and notify illegally the forest Land against the Honorable Court orders, rules and laws to private or local landlords or political influential persons of the vicinity;

 

e)         direct the Respondents to take penal action against the land grabbers / forest department officials and also recover pecuniary loss together with penalty from said persons for violating Section 26, 29, 35 & 38 of the Forest Act, 1927;

 

f)          restraining the land grabbers / respondents from harassing and dispossessing the poor villagers and damaging the forest land etc. through illegal allotments / approvals / notifications etc;

 

g)         direct the respondents to protect the life and property of the poor villagers of the said area and act according to Law and prevent the persons from encroaching on Forest Land and crating troubles for life and properties of the poor villagers of the said area for any malafide purposes is completely without jurisdiction, illegal and unconstitutional;

 

h)         award any other just or equitable relief(s) held appropriate as deemed fit and costs by this Hon’ble Court.”

 

 

4.         Notices were issued to respondents as well as learned AAG and operation of the impugned letter/order was suspended. Parawise comments have been filed on behalf of the respondents No.5 stating therein that the petition is bad in law and liable to be dismissed for mis-jonder and non-joinder of the necessary parties particularly being violative of Article 248 of the Constitution of Islamic Republic of Pakistan, 1973. It has been further stated that petitioner has approached to this Court with unclean hands with malafide intention and ulterior motive has deliberately suppressed the material facts from this Court, particularly with regard to paragraphs No.5 and 6 of the Forest Policy, 2004 which stood amended vide Notification No.FT&WL(SOI)-13(1) Agroforestry/2012 dated 30th May, 2012. More so, the petitioner is neither an aggrieved person nor has any locus standi to file the instant petition. It will not be out of place to mention here that petitioner moved contempt application and upon issuance of notice on said application respondents have caused their appearance and filed parawise comments.

 

5.         We have heard the arguments of learned counsel for the petitioner, learned counsel for the respondents and perused the material available on record.

 

6.         Syed Mureed Ali Shah, learned counsel for the petitioner vehemently argued that the act of respondents to lease out thousands acres of forest land to influential persons is illegal, malafide, unconstitutional and clear violation of Forest Act and International Treaty for which Pakistan is signatory of United Nation’s Millennium Development Goal for project “Billion Tree Campaign” and ensured international community for environmental suitability for the public livelihood. He argued that the act of deforestation under the nose of the respondent cause serious threat for continues risk to life as well as livelihood of vicinity people at large, which is a clear violation of the Constitution. He further argued that it is the foremost responsibility of the State to ensure the creation and the sustaining of conditions congenial to better life, livelihood maintenance and improvement of social well being. He also argued that the act of deforestation of reverine forests of Rari, Huderani, Penah, Mulchand, Hazari, Ganj and other forests in Sindh by an organized manner of Sindh Agroforestry Policy, 2004, which not only effect the beautiful landscape of the region, but amounts to desertification, which cause to be climate change and global warming which adversely affects human life, liberty and inalienable right of livelihood. He urged that after the deforestation of productive reverine forests, the land will left barren, and the life effecting poisonous gases concentration will increase relative to that in a natural system and it is possible that this adverse change might eventually lead to a green house warming of the earth and that will cause damage to the Ozone Layer. He has drawn our attention to an order passed by this Court on 10.03.2011 in C.P. No.D-1666/2010 whereby the Division Bench of this Court while disposing of the petition directed the Government to put GIS Mapping on its official website which will be accessible to all the people and that District & Sessions Judges of respective districts in the province of Sindh will constitute a Public Vigilance Committee for monitoring the forest cover who will submit its report on monthly basis to the respective District & Sessions Judge and in case of any violation is found, the District & Sessions Judge will take appropriate measures for dealing with such violation. Learned counsel has also drawn our attention to Section 14(2) of Sindh Wildlife Protection Ordinance, 1972, which provides the exploitation of forests within a wildlife sanctuary is prohibited, except for the purpose of reducing fire hazards [sic], epidemic or insect attack or other natural calamities.

 

7.         On the other hand, Mr. Farooq H. Naek, learned counsel for the respondent No.2, at the very outset, attacked the maintainability of the instant petition and stated that ad-interim order has been obtained by the learned counsel for the petitioner by concealing the true facts. He has contended that petition is bad on account of mis-joinder and non-joinder of necessary parties and in absence of necessary parties effectual and complete adjudication on the questions involved in the matter cannot be adjudicated properly in accordance with law. He has also contended that petitioner has deliberately suppressed the material facts with regard to paragraphs No.5 and 6 of the Forest Policy, 2004, which stood amended vide Notification No.FT&WL(SOI)13(1)Agroforestry/2012 dated 30th May, 2012.

8.         Learned counsel for the respondent No.2 further argued that a summary was floated to include additional forest area in the lease schedule under amended Agroforestry Policy 2012 as per provisions of clause-5 of amended Agroforestry Policy 2012 and the corporate sector has been encouraged to invest in forestry sector with a view to enhance tree cover with a better intensive management and financial resources for positive outcome. He also argued that the Chief Minister Sindh who is the competent authority to approve summary of the department under Sindh Government Rules of Business. He urged that the proposed area being devoid of tree growth were vulnerable to encroachments by the criminals, turncoats and land grabbers under the patronage of petitioner. He also urged that during first tenure of Agroforestry lease policy from 2005-2010 was meant to lease forestlands to local people and it proved unsuccessful as most to the area leased out to local people were excessively encroached and very few lease holder i.e. 4% lease area was brought under tree cover instead of 25%. He submitted that looking to this grave situation the Forest Department made few amendments in the lease policy of 2004 and allowed Corporate Sector NGOs and CBOs to be eligible for lease under amendment made in the Agroforestry Policy. He respectfully argued that this Court has been misleaded by the petitioner on this aspect mentioning that the local people are only eligible under the Policy.

9.         Learned counsel for the respondent No.2, besides his arguments on legal plane, he has drawn our attention to the encroachments made by petitioner and his family members. He vehemently argued that the Shirazi Family has ruined the forests of Thatta/Sujawal districts in the past and they want to continue their illegitimate control over the forests of Thatta and Sujawal in order to hold back their dwindling kingdom. He submitted that petitioner and his family on the basis of 420 acres of leased land have encroached over 5110 acres of precious forestland and getting its benefits for several years under either the cover of Court cases or by disturbing the law and order situation in the area. He submitted that Agroforestry Lease Policy is one of the best option in the current circumstances to enhance three growth on barren forestlands by involving private sector and to divert public money to more meaningful alternatives like health and education. He further submitted that as per procedure the auction notices are regularly issued through widely circulated newspapers and details for lease areas are always available in the relevant office to make the process transparent as such everybody has equal right to participate the auction proceedings. He stated that there is no threat to the life and property of local people living in the vicinity of reserved forests, but in fact the local people would get jobs and their livelihood would be improved with this economic activity. He, therefore, prayed for dismissal of instant petition with heavy cost.

 

10.       We have given due consideration to the arguments advanced by the learned counsel for the parties and perused the available material.

 

11.       The above numbered petitions were instituted on 11.07.2014 and 23.07.2014 respectively and C.P. No.D-3694/2014 came up for orders before the Court on 14.07.2014, the following order has been passed:-

“14.7.2014:

Mr. Syed Mureed Ali Shah and Ghulam Haider Shaikh,

Advocates for Petitioner.

 

1.         Urgency granted.

 

2.         Exemption granted subject to all just exceptions.

 

3&4:    Learned counsel draws attention to the order dated 30.5.2014 issued by the Chief Conservator of Forests. The order is in favour of M/s. Badin Agro Development Farm, Annexure P/1 to the petition. From the impugned order it appears that several thousand acres of land have been leased to the aforementioned entity. Learned counsel place reliance on notification, Annexure P/2 to the petition, dated 15.2.2005 whereby the Sindh Agro Forestry Policy, 2004 was notified. It appears that this notification was issued under the provisions of the Forest Act, 1927. In particular learned counsel place reliance on paragraphs 5 and 6 of the Policy as well as paragraph 8(5) thereof. Learned counsel submit that the present lease in terms of the impugned order dated 30.5.2014 is contrary to the terms of the aforesaid Policy and in particular the paragraphs that have been mentioned above.

 

Notice to respondents No.2 to 6 as also learned AAG for 23.7.2014. Till the next date impugned order dated 30.5.2014, Annexure P/1, is suspended.

                                                                        Sd/=

                                                                                  Sd/=”

 

12.       A bare perusal of above quoted order reveals that the petitioner has not brought into notice the amended paragraphs 5 and 6 of the Forest Policy, 2004 vide Notification No.FT&WL(SOI)13(1) Agroforestry/2012 dated 30th May, 2012. Amended Clause 5 and 6 are reproduced below for ready reference:-

 

“Clause 5        The Non-Government Organizations, Community Based Organizations and Corporate sector shall be eligible for lease as per terms and conditions set forth for them by the department, under the provisions of Sindh PPP Act, 2010.

 

Clause 6(2)      The forestlands developed under various development schemes having no forestry growth, if lying blank and included in the modified schedule shall be leased out at higher rates to recover development cost during lease tenure.”

 

 

13.       The crux of the arguments of the learned counsel for the petitioner was that the Government/Forest Department in violation of Sindh Agro-Forestry Policy, 2004 allotted thousands of forestlands to some political influential persons including M/s. Badin Agro Development Farm, which is nullified with the above quoted clause 5. Furthermore, the petitioner has impugned the letter dated 14.5.2014 and 30.5.2014 regarding approval of additional areas in lease schedule under Agroforestry Lease Policy of Sindh to M/s. Badin Agro Development Farm and others without impleading the allottees of the said area, who are the necessary parties and in their absence questions involved in the matter cannot be adjudicated properly in accordance with law. Therefore, in our humble view, the petitions are also bad on account of mis-joinder and non-joinder of necessary parties, thus liable to be dismissed on this score as well.

 

14.       It will be pertinent to mention here that on 15.10.2014, petitioner in C.P. No.D-3694/2014 moved an application bearing CMA No.26992/2014, under Order VI Rule 17 r/w Section 151 CPC, seeking amendments in the petition with the plea that the petitioner for the first time come to know through parawise comments about 2nd amendment Notification No.FT&WL(SOI)13(1)Agroforestry/2012 dated 30.5.2012, wherein several clauses including clause 5 were amended due to revival of Commissionerate System, as according to the petitioner, said amendments are completely unlawful, illegal, arbitrary, unconstitutional and contrary to the clauses of Sindh Agro-Forestry Policy, 2004 dated 15.2.2005 and as amended in 2010. It may be noted that petitioner in both the above noted petitions has challenged the Administrative letter No.FE&WL(SOI)13(1)Afrosforestry/ 05/06/P-X dated 14.5.2014 and subsequent letter C.XVI/7244 of 2013-14 Hyderabad dated 30.05.2014 being violative of Sindh Agro-Forestry Police, 2004 and such plea of the petitioner stood negated vide amended notification referred to above. Therefore, in our humble opinion, if the petitioner desires to challenge the amended Notification dated 30.5.2012, he may seek appropriate remedy available under the law and not in the instant petitions. It is important to note here that we refrain ourselves to comment on the encroachments made by the petitioner and his family, which was noted by us while hearing arguments.

 

15.       Aforesaid are the reasons for short order dated 06.11.2014 through which these petitions were dismissed in-limine alongwith listed applications.

                JUDGE

 

        JUDGE

Karachi:

Dated:10.01.2015.