2014 M L D 309
[Peshawar]
Before Waqar Ahmad Seth, J
Malik MUHAMMAD MISKEEN---Petitioner
Versus
Haji OBDAIDULLAH KHAN and others---Respondents
Writ Petition No.215 and Civil Revision No.170 of 2004, decided on 19th September, 2013.
(a) Khyber Pakhtunkhwa Conservation and Exploitation of Forest in Hazara Division
Ordinance (VII of 1980)---
----S. 3(2)(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Agreement against
the prohibition contained in statutory law---Effect---Valid agreement---Parties had entered into a
settlement/ exploitation agreement which was in respect of standing trees and exploitation--Agreement was hit by S.3(2)(a) of Khyber Pakhtunkhwa Conservation and Explanation of Forest
in Hazara Division Ordinance, 1980, thus was not enforceable being a void agreement--Judgment and decrees of the courts below were set aside.
(b) Khyber Pakhtunkhwa Conservation and Exploitation of Forest in Hazara Division
Ordinance (VII of 1980)---
----Ss.70 & 70-A---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art. 199--Constitutional petition---Suit for declaration---Non-issuance of statutory notice---Effect---Before
filing suit no notice as required under Ss. 70 & 70-A of Khyber Pakhtunkhwa Conservation and
Exploitation of Forest of Forest in Hazara Division Ordinance, 1980 was given, which was
mandatory---Suit in absence of such notice was not maintainable in circumstances--Constitutional petition was dismissed.
Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2
others PLD 1995 Kar. 399 and Lahore Cantt. Cooperative Housing Society Limited v. Messrs
Builders and Developers (Pvt.) Ltd. and others PLD 2002 SC 660 rel.
Tanveer Ahmed Mughal for Petitioner.
Muhammad Wajid Khan and A.A.-G. for Respondents.
Date of hearing: 19th September, 2013.
JUDGMENT
WAQAR AHMAD SETH, J.---Malik Muhammad Miskeen petitioner (in Writ Petition
No.215 of 2004) seeks the constitutional jurisdiction of this Court praying for:--
"that on acceptance of the writ petition, the judgment and order dated 29-6-2004 passed
by respondent No.1 may graciously be set aside being unlawful, without jurisdiction and based
on "no evidence".
2.
Whereas Rehmat Wali and Faqir Muhammad petitioners have filed Civil Revision
No.170 of 2004 under section 115, C.P.C. against the judgment and order of learned District
Judge, Kohistan dated 15-3-2004 whereby dismissing the appeal of petitioners maintained
judgment and decree of trial Court.
3.
Brief facts, as mentioned in the writ petition, are that Malik Muhammad Miskeen
petitioner instituted a suit for declaration and permanent injunction against the respondents. The
defendants Nos. 2 and 8 appeared and contested the suit by filing written statement and moved
application under Order VII, Rule 11, C.P.C. for rejection of the plaint, which was dismissed by
the trial court, however, on revision petition the said order was set-aside. The plaint was
amended. The defendant No.2 moved another application under Order VII, Rule 11, C.P.C. for
rejection of plaint, which was replied and both the applications were disposed of by the trial
court on 10-10-2003. Defendant No.2 preferred revision petition, which after contest was
accepted and suit of petitioner was dismissed vide judgment and order dated 29-6-2004. Hence,
the writ petition.
4.
Brief facts of Civil Revision No.170 of 2004 are that Malik Miskeen respondent No.1
instituted a suit for declaration and permanent injunction against the petitioners. The petitioners
appeared and contested the suit by filing written statement and learned trial court recording pro
and contra evidence and hearing the parties decreed the suit of respondent No.1. Feeling
aggrieved, the petitioners preferred appeal, which after contested was dismissed vide judgment
and decree dated 23-4-2009. Hence, the revision petition.
5.
Learned counsel for the parties stated that since legal questions involved in both the
matters are the same, therefore, they be clubbed and heard together, therefore, both the petitions
were clubbed heard together.
6.
Arguments heard and record perused.
7.
perusal of record would reveal that the parties had entered into a settlement/exploitation
agreement dated 7-9-1979, which is in respect of standing trees and exploitation. In this respect
section 3(2)(a) of Ordinance No.VII of 1980 provides:--
"3. Prohibition of private extraction of timber, etc. 3. (2) (a) all contracts, agreements or
other instruments entered into or executed for the extraction of timber or other forest produce in
the specified areas, subsisting immediately before the commencement of the Ordinance, shall,
upon such commencement, stand terminated. "
8.
Hence, the agreement dated 7-9-1979 is apparently hit by Ordinance VII of 1980. A
similar question of law was decided by this Court in the case of Rab Nawaz Khan v. Shah
Haneef in R.F.A. No.135 of 2003 decided on 1-2-2005, wherein it was held in para-9 as under:--
"Another legal aspect of the case is that there was imposed complete prohibition on the
cutting and removal of forest timber from Anora Compartment under the N.-W.F.P.
Conservation and Exploitation of Forest in Hazara Division Ordinance, 1980 as section 3 therein
is coached with unambiguous words in this regard. This ordinance has been cited in PLD 1981
N.-W.F.P. Statute at page 74 and at S. No.243 of the schedule, the Anora Compartment is clearly
mentioned to be the one included in the area the removal of timber there from was placed under
prohibition. Keeping in view this legal aspect if the agreement was fully proved through
evidence even then it was not enforceable being a void agreement as it was offending against the
prohibition contained in the statutory law ".
9.
The record is suggestive of the fact that before filing of such suit no notice as required
under sections 70 and 70-A of the Ordinance was given, which is mandatory. Right from very
start respondent has denied the receipt of such notice. At pages 51 and 52 are the said notices
with the remarks `received copy' whereas per plaint and evidence of the petitioner he served the
said notice through registered cover A.D. post. No such registered receipts were exhibited. The
record is also suggestive that along with the plaint and list of witnesses no suck notices were
attached, however, during evidence the same were placed on record, subject to legal and valid
objections from the other side. Those notices arc mandatory before institution of suit.
10.
In the case of Zia-ur-Rehman Alvi v. Messrs Allahabad Co-operative Housing Society
Limited and 2 others reported as PLD 1995 Karachi 399, it was held as under:--
"Notice in terms of S.70, Co-operative Societies Act, 1925 was a pre-requisite before
filing suit against registered cooperative society---Such notice should detail cause of action,
name, description and place of residence of plaintiff; and relief which he claimed---Notice in
terms of S.70, Co-operative Societies Act, 1925 being mandatory, suit in it's absence would not
be maintainable against any registered co-operative society---Any notice which did not confirm
with requirement of S.70, co-operative societies act, would not deemed proper notice in terms
thereof---Suit in absence of such notice was not maintainable in circumstances".
11.
A similar view was reiterated in the case of Lahore Cantt: Co-operative Housing Society
Limited v. Messrs Builders and Developers (Pvt.) Ltd and others reported as PLD 2002 SC 660,
wherein it was also held as under:--
"Non-issuance of statutory notice---Effect--Suit against a society or its officers in respect
of any act touching the business of the society is not competent under S. 70 of Co-operative
Societies Act, 1925 without issuing two months' notice prior to its institution".
12.
The suit of the petitioner was rightly held not maintainable and petitioner filed to make
out a case of misreading and non-reading of evidence on record, hence, needs no interference in
constitutional jurisdiction.
13.
Since in the writ petition, it is held that suit is based on an agreement under section 3 of
the Ordinance, therefore, the civil revision is allowed and judgments and decrees dated 22-112003 and 15-3-2004 of the courts below stand set aside.
14.
Consequently, Writ Petition No.215 of 2004 is dismissed whereas Civil Revision No.170
of 2004 is allowed and impugned judgments and decrees therein are set aside. No order as to
costs.
JJK/558/P
Order accordingly.