Divisional Forest Officer And ... vs J&K Special Tribunal And Another
2021 Latest Caselaw 1281 j&K

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU



                                                 OWP No. 670/2008
                                                 IA No. 987/2008

                                                 Reserved on 05.10.2021.
                                                 Pronounced on 08 .10.2021.




Divisional Forest Officer and another                          ..... petitioner (s)

                               Through :-   Mr.Aijaz Lone, Dy.AG

                         V/s

J&K Special Tribunal and another                              .....Respondent(s)

                               Through :- Mr. Vishal Sharma Advocate for
                                          R-2

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                               JUDGEMENT

1 Senior officers of the Forest Department have filed this petition

under Article 226 of the Constitution of India for quashing of order dated

15.05.2008 passed by the Jammu and Kashmir Special Tribunal, Jammu

["theTribunal"] whereby the Tribunal, while allowing the revision petition filed

by respondent No.2 against order dated 14.07.1999 passed by petitioner No.1,

dated 14.07.1999 has directed the petitioners herein to release 688 scants of

timber stored at Forest yard/office, Kishtwar in favour of respondent No.2

against proper receipt and issue form No. 25 for transporting the same to the

intended destination of respondent No.2.

2 This case has a chequered history. Way back in the year 1996,

father of respondent No.2, namely late Sh. Roop Chand Parihar moved an

application before the Deputy Commissioner, Doda for grant of permission to

lift timber of three dry Kail trees fallen due to natural calamity in khasra

No. 765/617/216 measuring 4 kanals situated in village Bhatan Tehsil

Kishtwar, owned and possessed by late Roop Chand, the father of respondent

No.2. The Deputy Commissioner, Doda, vide his order dated 22.04.1996 and

acting in exercise of powers vested under Section 13-A of the Jammu and

Kashmir Preservation of Specified Trees Act, 1969 [ Act of 1669], granted

sanction to father of respondent No.2 to lift timber within a period of one

month. Similarly, on the request of respondent No.2, the Divisional

Commissioner, Jammu vide his order dated 14.03.1996 had also granted

permission for felling 12 dry Deodar trees from his proprietary land mentioned

above.

3 It appears that father of respondent No.2, late Sh. Roop Chand fell

12 numbers of Deodar trees and collected 3 numbers dry Kail trees as per

permission and converted them into scants. With a view to transporting the

scants from his land to his residence at Kishtwar, late Roop Chand, father of

respondent No.2, applied for permission in form No. 25 for transportation of

timber. Petitioner No.1, who was supposed to grant permission in form No. 25

for transporting the extracted timber, refused to issue the requisite permission.

Aggrieved, late Roop Chand filed OWP No. 807/1996 seeking, inter alia, a

direction to petitioner No.1 herein to issue form No. 25 for facilitating

transportation of timber extracted pursuant to the permission granted by the

Divisional Commissioner, Jammu and the Deputy Commissioner, Doda.

4 Pursuant to the orders passed by this Court in the aforesaid writ

petition, Sub-Judge, Kishtwar, who was directed to make suitable arrangement

for protection of the timber, arranged transportation of timber from the land of

father of respondent No.2, late Sh. Roop Chand to Kishtwar and stored the

same in the premises of Forest Department. Ultimately, the aforesaid writ

petition was disposed of by a Bench of this Court vide its order dated

13.11.1998 with a direction to petitioner No.1 herein to treat the writ petition as

representation and dispose of the same in view of the judgment of Hon‟ble

Supreme Court in T.N.Godavarman Thirumulkpad vs. Union of India and

ors, 1997 (2) SCC 267. On appeal by late Roop Chand, the Division Bench of

this Court vide its judgment dated 28.04.1999 disposed of LPA(W) No.

607/1999 directing the petitioners herein to consider issuance of form No. 25 in

respect of fallen trees under Land Transport Rules, providing further that the

timber, if allowed to be transported, shall be got transported through the State

Forest Corporation or Departmentally as per direction No.2 of the Supreme

Court in T.N. Godavarman‟s case (supra). It was, however left at the discretion

of petitioner No.2 to take a final decision in the matter. In terms of the

directions passed by the Division Bench of this Court, late Roop Chand filed an

application before petitioner No.1, who vide his order No. 1666-71 dated

14.07.1999 rejected the application of late Sh. Roop Chand for release of

seized timber. Petitioner No.1 simultaneously vide his order dated 17.07.1999

submitted the case of alleged illegal felling of trees to the Divisional

Commissioner, Jammu for taking action against late Sh. Roop Chand under the

provisions of the Act of 1969. The order passed by petitioner No.1, in the

meanwhile, was challenged by late Sh. Roop Chand in OWP No. 1088/1999.

The said writ petition was dismissed by a Bench of this Court and feeling

aggrieved by the order of learned Single Judge, Roop Chand filed LPA before

the Division Bench of this Court. It is during the pendency of this appeal, late

Sh. Roop Chand died and was succeeded by respondent No.2.

5 It is submitted that the LPA which was pursued by respondent

No.2 also came to be dismissed on 12.12.2001. Order dated 14.07.1999 passed

by petitioner No.1 was challenged by respondent No.2 by way of revision

petition before the Tribunal. The revision petition has been allowed in terms of

order impugned passed by the Tribunal.

6 The Tribunal, after narrating the sequence of events that had led to

passing of order dated 14.07.1999 by petitioner No.1 ultimately, allowed the

revision petition and set aside the order dated 14.07.1999 passed by petitioner

No.1 and directed release of seized timber which pursuant to the orders passed

by this Court in OWP No.807/1996 was stored at the Forest yard/office

Kishtwar. It is this order which is assailed by the petitioners in this petition.

7 Having heard learned counsel for the parties and perused the

record, I am of the view that the controversy involved in this petition for

adjudication has not been addressed by the authorities in right perspective.

8 Indubitably, father of respondent No.2 had been granted proper

permission by the competent authorities under the Act of 1969 to lift the timber

of three dry Kail trees and fell 12 dry Deodar trees from his proprietary land.

This permission was admittedly granted by the competent authorities under the

provisions of the Act of 1969. As is claimed by respondent No.2, his father

converted three dry Kail trees and 12 Deodar trees into scants and stashed them

in his fields. As is required under Land Transport Rules, the father of

respondent No.2 required proper permission for transportation of the aforesaid

scants from his land to his residence in Kishtwar. He, accordingly, applied to

petitioner No.1, the authorized officer, to issue him form No. 25 as envisaged

under the Land Transport Rules. Petitioner No.1, however, refused to grant him

the permission, but without passing any formal orders indicating reasons for

such refusal. This made the father of respondent No.2 to knock the doors of

this Court by way of OWP No. 807/1996 in which a Bench of this Court vide

its order dated 04.10.1996 directed Sub-Judge, Kishtwar to arrange

transportation of extracted timber from the proprietary land of father of

respondent No.2 and make suitable arrangements for its protection. It is in

compliance to these interim directions passed by this Court, the Sub-Judge

Kishtwar arranged transportation of timber to the premises of the Forest

Department in Kishtwar.

9 The writ petition i.e., OWP No. 807/1996 was ultimately disposed

of on 13.11.1998 with certain directions as have been noticed hereinabove. On

appeal by father of respondent No.2, the judgment of Single Bench was set

aside by the Division Bench of this Court and a direction was issued to

consider issuance of form No.25 in respect of fallen trees under the Land

Transport Rules. This is how petitioner No.1 got jurisdiction to deal with the

case of respondent No.2. Petitioner No.1, on 14.07.1999 passed a detailed

order and refused grant of permission for transportation of extracted timber on

the ground that father of respondent No.2 had violated the permission granted

by the competent authorities under the Act of 1969 and had resorted to illegal

and unauthorized felling of green standing kail and devdar trees. The petitioner

No.1 also took up the matter with the Divisional Commissioner, Jammu to

initiate appropriate action against the defaulter for violating his permission.

10 It is true that respondent No.2 challenged the order of petitioner

No.1 in OWP No. 1088/1999, but the said writ petition was dismissed by a

Bench of this Court on the ground that it involved disputed questions of fact

and, therefore, respondent No.2 was well advised to avail of alternative

remedies available under law. Appeal preferred against the order of learned

Single Judge was also dismissed by a Division Bench of this Court, whereafter

respondent No.2 availed the alternative remedy by filing revision petition

before the Tribunal.

11 From the sequence of events narrated hereinabove, it transpires

that one thing that has not been adjudicated upon by this Court in earlier two

rounds of litigation and was not appreciated even by the Tribunal in proper

perspective, is that the Divisional Forest Officer or for that matter any other

Forest Officer has no jurisdiction under the Act of 1969 which was enacted by

the State Legislature to make provision for preservation of certain species of

trees and for regulating of felling and export thereof. Indisputably, both kail

and deodar trees are specified trees in terms of Section 2(e ) of the Act of 1969.

12 From the very definition of „specified trees‟ given in Section 2(e )

of the Act of 1969, it is abundantly clear that the trees growing in a demarcated

forest as defined in Jammu and Kashmir Forest Act, 1987 [Forest Act] are not

„specified trees‟ for the purpose of Act of 1969. Section 3 of the Act of 1969

imposes restriction on felling of any specified tree except under and in

accordance with the terms and conditions of a permit granted by the prescribed

authority under this Act. Proviso appended to Section 3 of the said Act makes

it clear that the permit granted under this Section shall not authorize felling of a

specified tree by any person other than the owner thereof. The non-obstante

clause used in Section 3 of the Act of 1969 gives Section 3 overriding effect

over the Forest Act or any other law for the time being in force. Section 4 of

the Act of 1969 deals with the application for permit. Grant and refusal of

permission is covered by Sections 5 and 6 of the Act of 1969. Section 13 of the

said Act provides penalty that can be imposed on a person who contravenes

any of the provisions of this Act and the rules framed thereunder or any term

and condition of any permit granted under this Act.

13 The Government has also framed rules under the Act of 1969

known by the name of Jammu and Kashmir Preservation of Specified Trees

Rules, 1969 ["Rules of 1969"] to give effect to the provisions of the Act of

1969. Under Section 13 of the Act, the prescribed authority is also empowered

to impose compensation and also to confiscate the timber, if the contravention

relates to felling of specified trees. Under Rule 15 of the Rules of 1969, the

prescribed authority can initiate action suo-motu on the complaint of any

person under Seciton 13 of the Act. Rule 15(2) of Rules of 1969 further

provides that where the timber has been confiscated under Section 13 of the

Act, the same shall be delivered by the prescribed authority to the Forest

Department against payment of its value by book credit to the Revenue

Department.

14 From the Scheme of the Act of 1969 and the rules framed

thereunder, the Forest Authorities, whether it is Divisional Forest Officer or

any other officer higher than that of the rank of Divisional Forest Officer, are

not authorized to initiate any action for contravention. The case of the

petitioners is that respondent No.2 was not entitled to refuse permission for

transportation of timber extracted from the specified trees on the ground that

the timber was extracted in contravention of the permission granted under the

Act of 1969. As already noticed above, such contravention is required to be

dealt with under Section 13 of the Act of 1969 read with Rule 15 of the Rules

of 1969 by the prescribed authority. The prescribed authority under the Act of

1969 would be one, prescribed under the Rules of 1969 and not the authority

prescribed under the Forest Act. That being the clear position emerging from

the various provisions of the Act of 1969 and the rules framed thereunder, the

very premise of refusal to grant permission to respondent No.2 for

transportation of timber is fraught with illegality and an act of deliberate

usurpation of powers of the prescribed authority under the Act of 1969.

15 The Authorities under the Forest Act were not competent in law to

enter the private land of respondent No.2 and seize the timber on the ground

that the same had been extracted in contravention of the provisions of Act of

1969. If that be so, it was for the prescribed authority under the Act of 1969 to

proceed under Section 13 of the said Act. Petitioner No.1, at the most, could

have acted as an informer and requested the prescribed authority to initiate

action against respondent No.2 if required. As a matter of fact, there is one

communication placed on record by the petitioners which demonstrates that at

one point of time, petitioner No.1 prepared a detailed report of alleged

contraventions made by respondent No.2 and apprised the Divisional

Commissioner, Jammu of such contravention. Petitioner No.2 should have left

it for the Divisional Commissioner to proceed in the matter. The Tribunal is,

therefore, correct in its conclusion that the very premise on which the

permission for transportation of timber was refused by petitioner No.1, was

contrary to the provisions of Act of 1969 and the rules framed thereunder.

16 The submission of Mr. Lone, Dy.AG that the Forest Department is

vitally interested in the contravention of permission granted under the Act of

1969 for felling of trees and the timber extracted in contravention of the

permission is liable to be confiscated and delivered to the Forest Department,

though against payment of its value by book credit to the Revenue Department,

is without any substance. The role of the Forest Department as ascribed by

Rule 15(2) of the Rules of 1969 is to receive the confiscated timber against

payment of its value and nothing more. It has no legal authority or jurisdiction

to either itself initiate an action or direct the prescribed authority under the Act

of 1969 to proceed against the defaulter for contravention of the provisions of

the Act of 1969 or the permission for felling of trees granted by the prescribed

authority.

17 Viewed thus, refusal by petitioner No.1 to grant permission to

father of respondent No.2 to transport the timber extracted by him pursuant to

the valid permission granted by the prescribed authority under the Act of 1969

was totally irrational, illegal and contrary to the provisions of the Act of 1969

and the rules framed thereunder. The contravention, if any, made by father of

respondent No.2 of the permission granted by the prescribed authority under

the Act of 1969 is penalized under Section 13 of the Act of 1969 and it is for

the prescribed authority under the Act of 1969 to initiate appropriate action.

Nonetheless, the petitioners or for that matter, any other authority under the

Forest Act is not competent to initiate such action. Reliance placed on the

judgment of T.N.Godavarman's case (supra) is also misplaced, in that, the

ban imposed by the Supreme Court in the said judgment was not applicable to

the felling of trees planted by a private person on his proprietary land. This is

clearly indicated by the Supreme Court in its judgment while dealing with the

State of Jammu and Kashmir.

18 In view of the above, I find no infirmity or illegality in the order

impugned passed by the Tribunal. This petition is, therefore, found to be

without merit and is, accordingly, dismissed.

19 Having regard to the fact that the litigation on a very simple and

short point has been pending adjudication since 1996, I deem it appropriate to

direct the petitioners to comply with the judgment of the Tribunal within a

period of four weeks from the date of this judgment. And, in case the seized

timber has perished or is not in a deliverable state, respondent No.2 shall be

paid the present market price of the timber so seized and withheld by the

petitioners, illegally and un-authorisedly.

Disposed of in the above terms.

(SANJEEV KUMAR) JUDGE JAMMU 08 .10.2021 Sanjeev

Whether order is speaking:Yes

Whether order is reportable: yes