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.