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Writ Petition No. 109 of 1974, decided on 7th May 1975.

-- S. 29(b) read with Forest Transport Rules, 1962, r. 2-Walnut trees already cut by a person from his agricultural land under a valid permission from Government-Government subsequently issuing directive prohibiting cutting of walnut trees and transportation of its timber-Permission to transport timber refused on ground of prohibi tory directives of Government-Held: Timber trees already felled under valid permission could not be refused transport permit; directives of Government even otherwise had no legal force unless suitable amend ments made in Hazara Forest Act and Rules made thereunder.

Qazi Muhammad Anwar for Petitioner.

Mian Burhanuddin, A.-G. for Respondents.

Date of hearing : 7th May 1975.

This and the connected six constitutional petitions, in which the facts and legal questions are the same, are directed against the refusal of respondents not to grant transport permits to petitioners to enable them do transport walnut trees cut by them from their cultivated fields to the desired destination.

The case of petitioners is that they had, in line with the requirement of Hazara Forest Act, 1936 and the rules made thereunder obtained from respondents the necessary permission to cut from their respective agricultural lands the specified number of walnut trees. But when the trees were cut by them and they applied to respondents to grant them transport-permits, they refused to do so saying that in view of the contrary instructions received from Provincial Government, in implementation of the directive of Federal Government of Pakistan, they had no authority to issue them necessary permits. The learned Advocate-General has indeed conceded the claim of petitioners. But even so, tried to justify the impugned action. In this respect, however, he relied only on the directive of Provincial Government which reads as under :-

"Cutting of walnut trees has been completely banned by the Government. No fresh marking to be done and trees already marked not to be cut. No permit for the transportation of walnut timber to be issued."

The learned Advocate-General admits, however, that long before the issuance of this directive, each one of the petitioners bad already cut from their fields the specified number of walnut trees. But all the same, he invoked in aid of the impugned action of respondents the words "No A permit for the transportation of walnut timber to be issued" appearing in the last line of said directive of Government. We are afraid, ibis contention is misconceived. A bare reading of the directive of Provincial Government would reveal its intention is that the cutting of walnut trees is totally banned. And to this extent, no one would be able to question the wisdom of its policy which is evidently based on ecological consideration. In other words, what the Government appears to have intended to achieve by the said policy directive was to save the forest wealth of the nation. And it is this context in which the directive issued by it has to be construed. Seen in this view, therefore, the contention of learned Advocate-General would appear to be unconvincing, for if the walnut trees, in all these cases bad, before the issuance of said directive, been cut by petitioners we cannot conceive of any rational basis on which transport permits could be refused to them. After all, the trees in question could not be replanted with a view to saving the forest wealth of the nation. And therefore we have not been able to see any wisdom in the impugned action of respondents which would, at its bare minimum, lead to destroy the value of cut timber and thus cause unnecessary financial loss to petitioners.

It will have been noted that in reaching this conclusion, we have assumed as if the said directive of Provincial Government has the force of law. But this is not the position. Although the policy contained in it would appear to be laudible. In order to implement the said policy, therefore, the Government should have rather sought to introduce suitable amendment in Hazara Forest Act and the Rules made thereunder. But unfortunately nothing of this sort seems to have occurred to any one. In this view of the matter, therefore, the said directive, issued in implementation of a similar directive of Federal Government of Pakistan, cannot be even looked into by a Court of law so long as it has not received the approval of Legislature. In other words, the dispute in this case will have to be decided according to law. And in this respect, rule 2 of Forest Transport Rules, 1962, framed under section 29(b) of Hazara Forest Act, 1936, would appear to be attracted to these cases arid it reads as under :-

"(2) All timber, firewood or other forest produce sold or obtained from the Reserved Forests, waste land and other places in the Hazara District shall, during its transport in the Hazara District by land, be covered by a transport pass issued by a Divisional Forest Officer ands accompanied by a Challan. The transport pass and the challan shall be as prescribed and supplied by the Forest Department on payment of such price and in the manner as the Conservator may determine from time to time."

The plain reading of this rule would show that a person would be unable to transport to the desired destination timber cut by him under valid permission even if he is willing to pay such price and abide the manner determined by the Conservator of Forest. It is not the case of respondents however, that the petitioners were unwilling to pay the required price. And thus the refusal of respondents to grant them the transport permits was evidently illegal.

In view of this discussion, all these petitions are allowed as prayed. And we direct that respondents would issue to petitioners the necessary transport permits in regard to the walnut trees which they had cut under the permission of Department.

In so far as the costs of these petitions are concerned, they must be borne by respondents in the sum of Rs. 200 for each petition as despite the decision of two similar writ petitions by this Court in 1974, they have failed to discharge their statutory obligation contained in rule 2 of the rules (ibid); and thus forced the petitioners to knock at the door of this Court by incurring considerable expense and suffering anxiety and delay in a matter respecting which there should have been no doubt whatever.

K. B. A. Petition accepted.

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