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Verma Traders and ors. Vs. the State of Himachal Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.Ps. Nos. 300 and 304 of 1982
Judge
ActsHimachal Pradesh Forest Produce (Regulation of Trade) Act, 1982 - Sections 4, 17, 17(2), 19 and 19(1)
AppellantVerma Traders and ors.
RespondentThe State of Himachal Pradesh and anr.
Appellant Advocate Chhabil Dass,; P. Goel and; Bhawani Singh, Advs.
Respondent Advocate Inder Singh, Adv. General
DispositionPetition allowed
Excerpt:
- .....accorded his sanction but imposed the condition that the converted timber be sold to the h. p. state forest corporation.3. in these writ petitions, the petitioners have challenged the imposition of the condition that 'the timber be sold to the state forest. corporation.'4. it is contended by the learned counsel for the petitioners that after the area was got demarcated through the revenue department, the trees had been marked and felled as also converted into timber, the imposition of such a condition is illegal and not warranted under the law. a memo sent to the petitioners containing this condition is annexure 'pb' and is reproduced as under for a ready reference:'noh. p. forest department, dated simla, thefrom: d. f. o. simla. to: r. o. mashobra. subject: sale of trees from.....
Judgment:

H. S. Thakur, J.

1. In CWDs 304 and300 of 1982, common questions of law and fact are involved. As such, both these CWDs can conveniently be disposed of by a common judgment. It may be pointed out that these writ petitions are being disposed of peremptorily as the same are likely to be rendered in-fructuous in case the timber is not sold, and, if necessary, transported to other places within the State or outside the State by 30th Nov., 1982.

2. The undisputed facts are that the petitioners applied for the marking and felling of trees standing on the areas owned by the petitioners-owners, and granting permission, for export of timber in favour of petitioners 1 and 2. The Government has produced the relevant record in the court. There are notes on the file and the relevant portions of the same, as in CWP No. 304/82, are reproduced as under:--

'Notes on file No. Fts (F) 13-19/82. Government of Himachal Pradesh Deptt. of Forest Farming & Environmental Conservation.

Subject : Private sale case of S/Shri Nanda s/o Kaloo, Balkia, Hiroo etc. andMastia etc, of Panial Beat of Mashobra Range.

Dy. No. 5978/82 PUC.

The CCF has forwarded a private sale case of S/Shri Nanda s/o Kaloo, Balkia, Hiroo and Mastia etc. resident of Jungla Naldhra for the sale of trees from their private lands comprising Kh. Nos. 3, 4 and 5 in Paniali DFFs Painali Beat of Mashobra Range of Simla Forest Division. The marking/demarcation orders in these cases were issued by C. F. Simla on 30-9-1981 i.e. before the promulgation of H. P. Forest Produce (Regulation of Trade) Ordinance, 1981 (now Act). The demarcation of these areas has been given by the Tehsildar concerned in the presence of A. C. F. Simla and internal boundary pillars in chaks have been fixed/constructed after affixing boundary pillars. The silvicultural marking has been carried out by the C. C. F. Simla and the following trees have been marked in each case. Joint certificates have been recorded on the marking list:

Name of owner :

Kh. No.

Total trees marked.

1.

Sh. Nando s/o Kaloo

3

Kail 29

2.

Sh. Balkia, Hiroo etc.

4

Kail 30

3.

Sh. Mastia etc.

5

Kail & 15

Deo 1

75

The area from where felling permission has been sought was due for felling during 1981-82 as per approved ten year felling programme. The CCF has intimated that marking/demarcation in these cases could not be done within the prescribed year due to heavy snowfall and unprecedented rains and moreover, due to the fact that the revenue staff could not be made available earlier for demarcation due to their pre-occupation in the State Assembly Elections and other multifarious duties.

Since the marking/demarcation orders have been issued in these cases before the promulgation of H. P. Forest Produce (Regulation of Trade), 1981 (now Act) the above cases are covered under Section 19 (1) of the Ordinance. As such, it has been proposed that felling permission in these cases may be granted during 1982-83 instead of 1981-82. The sanction so accorded, will remain valid onlyup to 30-11-1982 as prescribed in theOrdinance (Act) ibid.....'

The above notes show that the matter was examined by the Government and finally the Forests Minister accorded his sanction but imposed the condition that the converted timber be sold to the H. P. State Forest Corporation.

3. In these writ petitions, the petitioners have challenged the imposition of the condition that 'the timber be sold to the State Forest. Corporation.'

4. It is contended by the learned Counsel for the petitioners that after the area was got demarcated through the Revenue Department, the trees had been marked and felled as also converted into timber, the imposition of such a condition is illegal and not warranted under the law. A memo sent to the petitioners containing this condition is Annexure 'PB' and is reproduced as under for a ready reference:

'No

H. P. Forest Department,

Dated Simla, the

From: D. F. O. Simla.

To: R. O. Mashobra.

Subject: Sale of trees from private landMashobra Range.

Memo.

In continuation to this office endst. No. 11209-30 dated 31-3-1982, on the subject cited above.

2. As per approval of the Under Secretary (Forest) to the Government of H. P. read with his ietter No. Fts. (F) 13-19/82 dated 21-10-82 received through C. C. F. H. P. Enddt. No. Ft. 783-41/67(M), dated 10-11-1982 and C. F. endst. No. C. 28(b)-36/Simla 11345 dated 10-11-1982, the following private land owners are hereby allowed to fell the following trees from their private land. The felling permission is valid up to 30-11-1982. This permission is subject to the condition that converted timber will be sold to H. P. State Forest Corporation and further that the owners shall plant five trees for each felled tree.....All the concerned papers received in this office are returned herewith in original. The list of out-turn should be maintained Kh. wise. Please ensure that no trees are felled in Govt. forests.

Ends: As above.

Divisional Forest Officer

Simla Forest Division,

Simla

Endst No. 7893 dated Simla, the 12-11-1982.

Copy is forwarded to the owners through M/s. Verma Traders, P. P. Durgapur for information and necessary action.

Sd/-

Divisional Forest Officer,

Simla Forest Division, Simla.

5. The main contention of the learned counsel for the petitioners is that the respondents are depriving the petitioners of their right of sale of the timber to any purchaser offering better price by imposing this condition. In this connection reference has been made to the provisions as contained under Section 19 (1) of the Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982 (the Act in short). It is desirable to reproduce Sub-section (1) of Section 19 of the Act:

''19 (1) Notwithstanding anything to the contrary contained in Section 4, the State Government or its authorised officer may, on such terms and conditions and in such manner as may be prescribed, permit any person who had purchased the extracted forest produce for the purpose of further sale or had extracted forest produce or had obtained the orders of demarcation and marking for its extraction before the commencement of this Act. to fell, convert, transport and sell such forest produce to any person other than the State Government, or an authorised officer or agent and permit any person other than the State Government or its authorised officer or agent to purchase and transport the same. The permission so accorded shall lapse after the 30th November, 1982.'

6. It is further contended that under Section 17 of the Act, the State Government may subject to the condition of previous publication, make rules or issue directions to carry out the provisions of the Act. According to him, no such rules have so far been made. It is also contended that in order to carry out the purpose of the Act, the State Government has to constitute an Advisory Committee in terms of Section 6 of the Act, inter alia, for the purpose of advising the State Government in the matter of fixation from time to time of a fair and reasonable price at which forest produce offered for sale may be purchased by or on behalf of the State Government. It is farther pointed out that in terms of Section 7 of the Act, the Government shall after consultation with the Committee constituted under Section 6, fix the price at which the forest produce shall be purchased at various places by it or by any of its authorised agent from the owners of the forest produce. Neither any such Advisory Committee has been appointed so far nor the price has been determined by the State Government in terms of Section 7 of the Act. Moreover, it is contended that the respondents have not properly interpreted and considered the impact of Section 19 of the Act. It is pointed out that after the area was demarcated, trees were marked for felling and were in fact felled and, Thereafter timber converted therefrom, it was not just and proper for the respondents to impose the aforesaid condition. In this way the respondents have deprived the petitioners of their legitimate right to sell the timber to a purchaser who may offer the highest price. It is also pointed out that the orders for demarcation of the area etc., had been passed before the coming into force of the Act. It is emphatically emphasised that keeping in view the sequence of events the respondents cannot be permitted to take a somersault to the prejudice of the petitioners. According to the learned counsel for the petitioners, such an act of the respondents besides constituting legal mala fides, is in utter violation of the principle of natural justice and fair play.

7. It is contended by the learned Advocate-General that under Article 19 (6), a State Government cannot be prevented from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by Clause 1, Sub-clause (g) of the said Article. It is also contended that the petitioners are not being deprived of their property but they are only debarred from selling the timber to anyone else except the State Government. Such a restriction according to him cannot be termed as unreasonable. So far as other material facts are concerned, it is not disputed in the reply filed to the C. M. P. 4543 by the learned Advocate-General that the area had been demarcated and trees for felling were marked and after felling, the timber had been extracted therefrom. It is also not disputed that the orders of demarcation and marking were issued, by a competent authority prior to the enforcement of the Ordinance (now the Act).

8. We have considered, the respective contentions of the ' learned counsel for the parties. The record shows that the petitioners had applied for the demarcation of the area, marking of trees, felling,conversion and export prior to the coming into force of the Ordinance (now the Act). According to the petitioners, the application was filed about six years back. It is to be noticed that annexure 'PB' in both the writ petitions was issued on 12th Nov. 1982. It is apparent that an unnecessary delay was caused in passing the said order. It is indicated in the order annexure 'PB' that the felling permission is valid up to 3oth Nov. 1982. The plea of the petitioners is that the portion of the order imposing the condition 'the permission is subject to the condition that converted timber will be sold to the Himachal Pradesh State Forest Corporation' is illegal, unreasonable and not in consonance with the spirit of Section 19 (1) of the Act. It is to be noticed that Section 19(1) of the Act is an exception to Section 4 of the Act. As pointed out earlier above, no rules have been made under Section 17 of the Act so far. In this connection, it is relevant to refer to Section 17 of the Act which reads as under:

'17 (1) The State Government may, subject to the condition of previous publication, make rules or issue directions to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of foregoing power, such rules may provide for all or any of the following matters, namely :--

(a) the terms and conditions and the procedure for appointment of agents under Section 3:

(b) the manner of the conduct of business of the Advisory Committee under Section 6 (3) ;

(c) the publication of the price list of the forest produce under Section 7;

(d) the terms and conditions governing the payments of advances under Section 8(2);

(e) the manner in which the forest produce shall be disposed of under Section 9;

(f) the terms and conditions subject to which, and the manner in which, the permit may be granted under Section 19(1);

(g) any other matter which is to be or may be prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session, for a total period of not less than ten days, which may be comprised in one session or in two or more successive sessions, and if before the expiry of the session in which it is so laid or the sessions aforesaid, the Assembly makes any modification in the rule or decides that the rule shouldnot be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.'

9. Under Section 17(2) (f), the terms and conditions subject to which, and the manner in which, the permit may be granted under Section 19 (1) has been prescribed. In the absence of any rules framed under Section 17 of the Act, it is not possible to ascertain whether the above condition could be imposed or not. Even the guidelines are not indicated anywhere. An authority cannot assume arbitrary, unguided and unbridled power in a matter relating to the rights of a citizen. By imposing the above condition, the State Government indirectly made Section 4 of the Act applicable by defeating the purpose of Section 19 (1) thereof. Such a course cannot be considered legal or reasonable. The State Government cannot be permitted to achieve an object indirectly which is not permissible in terms of an enabling provision of the Act. Section 19 (1) being an exception to Section 4 of the Act, the action could be only taken in consonance with the spirit of the said section. It is strange that in the one hand the State Govt. permitted the petitioners to get the area demarcated, get the trees marked allowed their felling and to convert timber therefrom and on other hand when the forest produce reaches the stage of sale in the shape of timber, a condition like the one referred to above is imposed. Such an action is not justified and the principle of equitable and promissory estoppel will apply to the facts of the case. It is a matter of common knowledge that in the process of felling of trees and converting timber therefrom, a person has to incur heavy expenses. Now, when the timber is ready for sale, without any price having been fixed and without action having been taken under Sections 6 and 7 of the Act, it is not just and proper to impose such a condition. Since such a condition is not in consonance with the essence and spirit of Section 19 (1) of the Act, the same cannot be sustained Moreover, no such material has been placed on record to show that the restriction imposed is in the interest of general public. Since no rules are prescribed and nothing cap be spelled out from the record to justify the imposition of such a condition, the same isunwarranted under the law. The record reveals that the final decision of the imposition of the above condition has been taken at the final stage, without any material on record.

10. For the foregoing reasons, we are of the view that the restriction as contained in annexure 'PB' to the effect that 'this permission is subject to the condition that converted timber will be sold to the Himachal Pradesh State Forest Corporation' is illegal and violalive of the principle of natural justice and fair play. The said portion of the order is hereby quashed. A writ in the nature of mandamus is also issued to the respondents to the effect that the petitioners be allowed to sell the extracted timber to the purchasers of their choice. The respondents are further directed to give or issue transit and such other permits and orders that may be necessary and be required by the petitioners for the effective sale of the timber to a purchaser or purchasers of their choice, within the stipulated period.

11. The writ petitions are accordingly allowed, but with no order as to costs


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