N.W.F.P. FOREST DEVELOPMENT CORPORATION and another vs GUJAR KHAN

ORDER

' AJMAL MIAN, C.J.---By this common order we intend to dispose of the above two petitions for leave to appeal. They are directed against a common judgment, dated 2-4-1996 of the Peshawar High Court passed in Writ Petitions Nos.488 of 1994 and 225 of 1995.

2. The brief facts of the above writ petitions are as under:-- Writ Petition No,488 of 1994 ' In the aforesaid writ petition, one Mutabar Khan and others in their own capacity as well as representatives for the persons/local right-holders of residents of village Atror, District Swat, sought appropriate direction against the Provincial Government of N.-W.F.P. For payment of 60% royalty from the sale proceeds of the forests from commercial sales on the basis of agreements, dated 4- 10-1981 expiring on 30-6-1983 and also on the basis of Notification SOFT (FAD)V-405 of 1977, dated 14-3-1977 (published in Government Gazette, dated 10th June, 1977). The aforementioned writ petition was allowed in terms of the detailed judgment rendered in Writ Petition No,225 of 1995, which is now the subject-matter of Civil Petition for Leave to Appeal No,262 of 1996.

Writ Petition No,225 of 1995 ' In the above writ petition, one Gujar Khan and others in their own capacity as well as representatives for the persons/local right-holders of resident of Tehsil Kalam, District Swat, prayed for appropriate direction against the Provincial Government of N.-W.F.P. For payment of 60% royalty from the sale proceeds of the forests from commercial sales on the basis of agreements, dated 4- 10-1981 limited for the period of two years i.e, from October, 1981, to 30-6-1983 and also on the basis of Notification SOFT (FAD)V-405/77, dated 14-3-1977 (published in Government Gazette, dated 10th June, 1977).

3. The High Court directed for filing of the comments by respondents Nos.1 and 2 and also ordered for issuance of notice to the Advocate-General, N.-W.F.P. After receiving the comments, hearing the learned counsel for the petitioners and the learned Advocate-General, N.-W.F.P., the afore stated writ petition was allowed in the following terms:-- "It is observed that the commercial sale of the Forest produce in P.A.T.A. Is grabbed by influential in P.A.T.A., who can score their own illegal gains in concert with the politicians. The local inhabitants of P.A.T.A. Rot in their own stew. The Provincial Government is well-advised to act in accordance with the Forest Act (XVI of 1927) and the N.-W.F.P. Management of Protected Forests Rules, 1975 and distribute the sale proceeds amongst the local inhabitants in accordance with the procedure provided in the Forest Act and Rules framed thereunder by suitable amendments in the Rules, if need be as indicated in Para. 4 and Para. 7 of the judgment. With this observation this petition (Writ Petition 225 of 1995) and Writ Petition No,488 of 1994 Mutabar Khan v. N.-W.F.P. Forest Development Corporation are disposed of. ''

' The subject-matter of the aforesaid writ petition is now covered by Civil Petition for Leave to Appeal No,261 of 1996.

4. Both the above petitions have been filed by the N.-W.F.P. Forest Development Corporation through its Managing Director, in which, besides arraigning the original petitioners, the official respondents have also been arraigned. In both the above petitions, the petitioners are represented by Mr. M. Sardar Khan, learned Senior Advocate Supreme Court; whereas respondent Nos.1 to 4 in C.P.L.A. No,261 of 1996 are represented by Mr. S.M. Zafar learned Senior Advocate Supreme Court.

Respondents Nos. 1 to 14 in C.P.L.A. No,262 of 1996 are represented by Qazi Muhammad Anwar, learned Senior Advocate Supreme Court.

5. In support of the aforementioned petitions Mr. M Sardar Khan, learned Senior Advocate Supreme Court has vehemently contended that factually no amount was due and payable by the petitioners under any of the agreements or the Notification referred to above. According to him, private respondents/petitioner had suppressed the subsequent agreement, dated 6-10-1983, which has substituted the earlier agreement, dated 4-10-1981.

' Whereas the learned counsel for the respondents/caveators have submitted that factually the respondents/petitioner had not received, their dues.

6. We would not like to examine the merits of the respective contentions of the learned counsel for the parties as, in our view, the above petitions can be disposed of on a short ground, namely, that though C.M.A. No,323 of 1995 filed by the petitioners under Order I, Rule 8, C.P.C. For suing in representative capacity was allowed by an order, dated 24-9-1995, but no service/publication was effected as per the above provisions of the C.P.C.

7. We, therefore, convert the aforesaid petitions into appeals, set aside the impugned judgment and remand the cases to the High Court with the direction to get the notice under Order I, Rule 8, C.P.C. Served/published in accordance with law and then after service of notice on the remaining respondents, the above two writ petitions may be decided afresh.