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Dina Sheikh Vs. State of Jammu and Kashmir and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petn. No. 470 of 1982
Judge
Reported inAIR1985J& K46
ActsJammu and Kashmir Land Revenue Act, 1996 - Sections 36 and 37; ;Jammu and Kashmir Land Revenue Regulation - Section 47; ;Jammu and Kashmir Land Revenue Rule - Rule 10A; ;Constitution of India - Articles 14 and 19(6); ;Jammu and Kashmir Land Revenue Act, 1906 - Sections 36 and 37
AppellantDina Sheikh
RespondentState of Jammu and Kashmir and anr.
Appellant Advocate G.N. Goni, Adv.
Respondent Advocate S.D. Sharma, Chief Govt. Adv.
DispositionPetition allowed
Excerpt:
- .....1980 are meant from the protection for the illicit use of the royal trees and the movement of the timber extracted out of the said trees can be regulated by the state government and the powers conferred on the dfo's of the respective districts. in the instant case form no. 25 issued earlier was subject to condition that further movement of the timber shall be permitted only on the fulfilment of the requisite conditions relating to the actual consumption and further to ascertain that the said timber, which will be removed in future will not be mis-used by transfer or otherwise by the petitioner against the said regulation. learned counsel for the respondents further relies on the circulars issued from the government from time to time and during the course of arguments, he has taken me to.....
Judgment:
ORDER

Mazhar Ali Shah, J.

1. This is a petition under Article 226 of the constitution of India read with Section 103 of the Constitution of Jammu and Kashmir praying for the issuance of a writ of mandamus directing the respondent No. 2 to permit the petitioner for transportation of the timber taken out from his own land

2. The admitted facts are that the petitioner owns private land assessed to land revenue situated in Badyal Brahamana, Tehsil RS Pora bearing survey No. 45 situated in Nagani, Tehsil Bhaderwah and survey No. 69 situated in Chatra, Tehsil Bhaderwah, wherefrom he extractedtimber out of standing 'Deodar' trees of the valume of 2100 cft. from his private land. A certificate to this effect was issued by Tehsildar Bhaderwah and also a letter to the DFO Bhaderwah, which are annexed as annexures I and II to the petition dated Nov. 3, 1980 and Sept. 7, 1981 respectively.

3. The petitioner extracted the abovesaid timber for the construction of his proposed house of an area was 1800 eft. as per plan estimate consisting of three stories. It is further submitted that DFO Bhaderwah-respondent No. 2 instead of issuing Form No. 25 for the entire requisite timber of 1800 eft. only presumptively purporting to act on letter No. FST/Misc. O 155/71-1/301 dated 4-3-1975 from secretary to government, forest deptt. vide annexure III to the petition.

4. The contention of the petitioner is that the act of the respondent No. 2 is arbitrary in refusing to transport the rest of the timber in pursuance of annexure-III, which is violative of the constitutional provisions and is liable to be struck down as ultra vires the power of the, respondents. It is further alleged that despite furnishing the consumption certificate of the transported timber, the respondents acted illegally and without jurisdiction in not issuing Form No. 25 for the entire balance of the requisite timber and thus violated the proprietory rights guaranteed to the petitioner of the use of his own property under the Constitution of India

5. The orders are also attacked which are marked as annexures I, II and IV as discriminatory and based on mala fides demonstrating that under the similar circumstances Form No. 25 is issued by the DFO for the transport of entire timber required for the construction of their houses to other persons, who are named in this petition as Shri Attaullah Sohrewordy, Shri Gourilal and one Rajdev also. Thus the petitioner has prayed that the respondents have no right to refuse the petitioner to transport the balance of the timber needed, which is his own property and therefore, violative of the rights of the petitioners guaranteed under the Constitution as rights to his property.

6. The respondents in reply categorically admitted that the timber aforesaid is a property of the petitioner, there is also no dispute about the fact that the same is extracted from the land belonging to the petitioner and Form No. 25 was issued in the first instance for the requisite quantity stated above and the balance could only be issued as per directions issued by the Secretary to Government after the satisfaction of the DFO about the consumption of the timber in question. The attack of the respondents to disentitle the petitioner from the transport of the balance of the timber is mainly based on the protection granted to the government with respect to the royal trees under Sections 36 and 37 of the J. & K. Land Revenue Act 1906 and the Rules made under the J. & K. Forest Act 1987 and the Circulars issued by the government from time to time in this behalf. It is not a disputed fact that the trees in question out of which the timber is extracted are 'Deodar' which are royal trees within the meaning of Section 36 of the Land Revenue Act. It is further submitted by the learned counsel for the respondents that the various provisions referred to above and specially regulated under Rule 10-A of the Rules framed under Section 47 of the Land Revenue Regulation, 1980 are meant from the protection for the illicit use of the royal trees and the movement of the timber extracted out of the said trees can be regulated by the State government and the powers conferred on the DFO's of the respective districts. In the instant case form No. 25 issued earlier was subject to condition that further movement of the timber shall be permitted only on the fulfilment of the requisite conditions relating to the actual consumption and further to ascertain that the said timber, which will be removed in future will not be mis-used by transfer or otherwise by the petitioner against the said regulation. Learned counsel for the respondents further relies on the circulars issued from the government from time to time and during the course of arguments, he has taken me to the government order No. 185-FST-83 dated Dec. 31, 1983 wherein the following orders are issued by the Government :

'It is ordered that henceforth no permission be granted for felling of trees from any lands, which are adjacent to the forest areas.'

The said circular does not advance the arguments of the learned counsel for the respondents any further as there is no contention in the present case that the land belonging to the petitioner is adjacent to the forest area, which is a question of fact, which can be determined only by the competent authority as and when the question arises.

7. On hearing the learned counsel for the parties in the context mentioned above, in my opinion it is no doubt true that the various provisions referred to above by the learned counsel for the respondents empower the state government to regulate the movement of timber extracted from the private lands of the royal trees and are a reasonable restriction with respect to the right to property guaranteed to the individual citizen and not violative of the provisions of the Constitution of India, nor it can be said that the rules and circulars issued by the government from time to time are ultra vires, the powers of the government and hence I, hold that the power to regulate and restrict movement of the timber extracted out of the royal trees is quite legal and within the powers of the State government. The action of the respondents in this case and the various orders issued and the rules framed thereof cannot be struck down on that point.

8. Reverting to the facts and circumstances of the present case and upholding the powers of the Stale government as mentioned above in the facts and circumstances of the present case, I find that the respondents have not followed the procedure prescribed therein in the interest of the petitioner, on the contrary they have discriminated in the movement of the timber extracted on flimsy grounds. The action is arbitrary and violative of the orders issued by the respondents themselves in the present case. It is an established proposition of law that each case is to be dealt with on its own merits and circumstances of each case cannot tally with each other. The competent authority is satisfied of the requirement of the petitioner vide Annexure-III as staled in para No. 2 of the order issued on March 4, 1975 to the following effect :

'In the eligible cases the DFO should not authorise the movement of timber in one lot. He should issue F, 25 in respect of 25% of the total quantity sanctioned by him. Movement of the balance quantity should be allowed after obtaining a utilization certificate about the Ist lot from the Municipal Council, Town Area Committee or the Notified Area Committee as the case may be.'

9. It is not disputed in the present case that the requisite certificate about the utilization is produced by the petitioner and nothing is pointed out to disentitle the petitioner to obtain Form-25 for the balance of the quantity required by the petitioner as per approved requirement already issued in favour of the petitioner. It is expected from the public authority that they will act bona fide and where the material is required for the purpose of construction of the particular house of a citizen expediency in disposal of such matters is also expected from them, otherwise with the lapse of time in the present day progressive society the hampering of the work will cause prejudice and loss to the petitioner in carrying on with his construction and utilizing the property of his own for his own benefit.

10. Under the abovesaid circumstances, I hold that the action of the respondent withholding the issuance of Form No. 25 for the movement of abovesaid extracted balance of the timber needed for the construction of the house of the petitioner is illegal and liable to be quashed. The petition is, therefore, allowed and the respondents are directed to issue the requisite Form No. 25 for the transportation of the extracted balance of the timber for the requirement of the petitioner himself forthwith according to law. The respondents are also saddled with the cost of the present petition, counsel's fee Rs. 250/-. The petition stands disposed of accordingly along with connected C. M. Fs.


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