Govt. of KP Vs Rozimand Khan & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 221-M/2024 With Interim Relief, C.Ms 204 & 948/2025 The Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and others........................................................(Petitioners) vs Rozimand Khan and others..................(Respondents) Present: M/S Rahimullah Chitrali and Naeem Khan, Asst:A.Gs for the petitioners alongwith M/S Muhammad Usman Khan, DFO (Litigation) Swat, Safdar Shah, SDFO (Litigation) and Asif Shah, Tehsildar Charbagh in person. M/S Ikramullah, Syed Fazal Rahman and Mehnaz, Advocates for the private respondents.

Date of hearing: 02.09.2025

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through this particular Writ Petition, petitioners have called in question the judgments / orders dated 06.05.2023 and 11.12.2023 rendered respectively by learned Civil Judge-II and Additional District Judge-III / Izafi Zilla Qazi Swat, whereby their objection so raised with regard to maintainability of the suit filed by the respondents / plaintiffs was turned down.

2.Factual background necessitating the petitioners to file the instant Writ Petition is that a Suit No. 133/1 of 2016 was filed by the respondents No. 1-147 / plaintiffs, whereby they have sought a declaration in Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the form that the suit property comprising of Khasra No. 1408/1 and 1408/3 should be declared as their ownership and entries in the names of respondents No. 148-251 are liable to be recalled. With that, certain mutations as mentioned in prayer clause ( )بof the plaint entered and attested in favour of the aforesaid respondents have also been called in question and it has been claimed that the suit property forming subject matter of these mutations is their private ownership.

Likewise, in Khasra Nos. 1408/5 and 1408/6, they are also claiming rights with respect to royalty. This particular suit has been contested by the defendants including the present petitioners. During the course of evidence, an objection was raised by the present petitioners regarding maintainability of the suit on the ground that as if jurisdiction of the civil courts was barred under the provisions of Section 92 of the Khyber Pakhtunkhwa Forest Ordinance, 2002 (“Ord.”). Said objection was overruled by the learned Trial Judge, on 06.05.2023, in the following terms;

“After hearing arguments of plaintiffs’ counsel and counsels for all the defendants and perusal of entire documentary evidence available in the case record this court has reached to the conclusion that that as per revenue record survey No. 1408/5 and 1408/6 falls in Moza Malam Jabba Tehsil Charbagh, District Swat. Although as per revenue record of Tehsil Charbagh District Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Swat Moza Malam Jabba for the year 2013- 14 survey No. 1408/5 and 1408/6 are protected forest and august Supreme Court in its judgment dated 7th February 2023 in the Civil Revisions No. 43-M/15 & 103-M/ 16 & Writ Petition No. 87-M, 358-M, 699-

M/2016, 353-M, 551-M/2017, 880-M, 974-

M, 1245-M/2019, 627-M/2020, 612-M,

613-M/2019, 57-M & 166-M/2021, has ousted the jurisdiction of Civil Court to try suits related to declaration of ownership and title in the property comprising protected forest, but at the same time there are no specific directions to the extent that any claimant for the share of royalty in the protected forest is also stopped to approach the civil court. Whether plaintiffs are Dautari owners or not as per Revenue Record in survey No. 1408/5 and 1408/6 Tehsil Charbagh, Moza Malam Jabba, District Swat or whether they are entitled to recover any share of royalty in the protected forest is a mixed question of fact and law which will be determine after recording pro and contra evidence. To come up for Case Management & Scheduling Conference on 11.5.2023.”

A challenge there-against was preferred by the present petitioners before the learned District Judge / Zilla Qazi Swat, which was finally decided vide the impugned judgment / order dated 11.12.2023 by maintaining the judgment / order of the learned Trial Judge passed on 06.05.2023.

3.Learned Asst:A.G representing the petitioners has argued that in essence, respondents No. 1-147 / plaintiffs are challenging the Notification of the Provincial Government issued under the relevant provisions of the Ord., whereby the suit land has been Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

declared as a protected forest and so bar of jurisdiction as contained in Section 92 of the Ord. ibid was clearly applicable to the suit in hand. In support of his contentions, he has relied upon the judgment of the apex court rendered in the case of ‘Shah Zaman Khan and others vs. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others’ reported in PLD 2023 SC 340.

4.In response, learned counsel representing both set of private respondents have argued that the dispute that is being tried by the learned Trial Judge was with regard to ownership of two Khasra numbers (1408/1 and 1408/3) which are recorded in the revenue record in favour of one set of private respondents which the other is questioning. These two particular Khasra numbers, according to them, are not declared as protected forest and so the revenue record negates the plea that is being pressed by the petitioners regarding the bar of jurisdiction. Likewise, with regard to other suit Khasra No. 1408/5 and 1408/6, they have argued that the status of these Khasra numbers duly notified as protected forest has not been called in question. The only thing that has been litigating upon was as to which set of private respondents was entitled to be paid royalty rights of these two Khasra numbers. Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

5.Arguments heard and record perused.

6.In order to apply the bar of jurisdiction as contained in Section 92 of the Ord., the only condition which must exist is that if at all civil courts have been approached for the purposes of implementation of either of the provisions of the Ord. or the rules made thereunder, their jurisdiction is clearly ousted. For the facility of reference, Section 92 of the Ord. is reproduced herein below;

“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 thereunder.”

Since, it is a case where the petitioners are asking for invoking bar of jurisdiction clause, it is in that respect a settled principle of law that such types of clauses are to be very strictly construed1. They are not liable to be interpreted or susceptible to any intendment. The bar of jurisdiction must be very clearly spelt out from the plain language of the statute and is to be applied on relevant facts and

circumstances of the case. In the instant case, it has ‘Muhammad Siddiq and others vs. Government of Pakistan and others’ 1981 SCMR 1022, ‘Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another vs. Hakeem Hafiz Muhammad Ghaus and 5 others’ PLD 1997 SC 3, ‘Evacuee Trust Property Board and others vs. Ahmed and others’ 2004 SCMR 440 and ‘Messrs Sui Northern Gas Pipelines Limited (SNGPL) vs. Messrs Noor CNG Filling Station’ 2022 SCMR 1501.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

been plainly averred in the plaint filed by the private respondents No. 1-147, the status of protected forest of the land comprising of Khasra No. 1408/5 and 1408/6 has not been challenged at all. Only right in respect of recovery of royalty is being litigated upon. Learned Asst:A.G was time and again asked that as to whether any of the provision of the Ord. or rules made thereunder deal with the situation whereby authority has been conferred upon any of the officials to resolve the dispute between the two private parties with respect to payment of royalty, he has referred to Notification No. SO(Tech)ED/V-168/2003/KC dated 24.12.2004, whereby the Khyber Pakhtunkhwa Joint Forest Management (Community Participation) Rules, 2004 have been framed and notified. Perusal of the aforesaid Rules clearly show that there is no specific provisions with regard to resolution of a dispute between two private claimants regarding concessionists rights / payment of royalty. Therefore, in that respect bar of jurisdiction as contained in Section 92 of the Ord.

cannot be attracted and applied in the instant case.

7.As regard reliance of learned Asst:A.G representing the petitioners on the case-law (PLD 2023 SC 340), the same is clearly distinguishable from the facts and circumstances as they obtained in the present Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

case. In almost all the cases before the apex court in Shah Zaman Khan case supra, the validity of Notification with regard to declaration of the property forming subject matter of those cases as protected forest was disputed in which it was held that bar of jurisdiction as contained in Section 92 of the Ord. was applicable. This in the present case is not the matter in issue between the parties, therefore the case-law relied upon by the learned Asst:A.G is not applicable to the facts and circumstances of the case in hand.

8.Such being a case, the impugned judgments / orders of the two courts below are found to be in consonance with law and are not liable to be interfered with. Resultantly, the Writ Petition in hand, being devoid of any merit, is hereby dismissed.

Announced Dt: 02.09.2025 -Sd-

JUDGE

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah