MOHD RAMZAN BHAT Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition under Article 32 (2 -A) of the Consti ­tution of India as applied to the State of Jammu and Kashmir and section 103 of the State Constitution for issue of a writ quashing order dated July 2, 1971. of the Deputy Commissioner, Baramuiia. The petition also prays that certain provisions of the Jammu and. Kashmir Preservation of Specified Trees Act, 1969 (hereinafter referred to as the Act) particularly sections 8 and 9 thereof and rule 9 of the rules made under the Act be struck down as they are ultra vires, unconstitutional, illegal and violative of the petitioners fundamental rights under Article 19 (1) (f) and (g) of the Constitution of India.

(2.) THE petition inter alia alleges that the prescribed authority granted to the petitioner permit No. CTI/I -PST/PA dated April 20, 1970, for felling 12 walnut trees, two standing on Khasra No. 558, in village Thandoosa, nine standing on Khasra Nos. 4905, 4917, 5682, 5601, 2048, 1900, 5651, 1529, 5698 in village Lalpora and one standing on Khasra No. 3093 in village Darpura, Tehsil Kupwara, after satisfying itself that the aforesaid trees were neither green nor fruit bearing and were fit to be felled, that out of the trees permitted to be felled by the Deputy Commissioner, Baramulla the petitioner felled two trees in Thandoosa, five in Lalpora, and one in Dardpura within the time specified in the permit but the rest of the trees could not be felled due to non -availability of labour, that on June 16, 1970, Ghulam Mohamad, the petitioners sisters son who was on inimical terms with the petitioner styling himself as Sarpanch, Sogam, submitted a false complaint to respondent No. 2 alleging that the petitioner had been indulging in illicit felling of walnut trees but the complaint was found to be false both by the forest and revenue authorities to whom it was referred by the respondent, that the Naib -Tehsildar, Kupwara, to whom the aforesaid complaint was referred reported on July 25, 1971, that the petitioner had not up to that date committed any contravention of the Act and out of the sanctioned number of trees he had felled eight trees and that there could be no objection to the petitioners removing the felled stock but in order to please respondent No. 2 he added that the permission for felling the remaining four trees should be rescinded, that meanwhile in October 1970, the respondent stopped one of the petitioners trucks before it reached Gohri Check post and seized the firewood loaded therein, that being inimically disposed towards Abdul Gani, proprietor, Victory Export Import Syndicate, Srinagar, who was the purchaser of the walnut timber from the petitioner, the respondent issued secret instructions to his subordinate agencies asking them not to permit felling of walnut trees even though covered by permit, that the respondent also directed the forest department not to issue form 25 for transport of any walnut timber, firewood, stumps or logs though he had no authority to do so, that this illegal and unauthorised act of the respondent caused considerable damage and loss to the petitioner as he had already sold the stumps of the aforesaid trees to the said Abdul Gani, that in addition to the several written representations the petitioner also sent a telegram to the respondent towards the end of March 1971, requesting him to permit transportation of the felled stock, that he also personally approached the respondent whereupon the latter called his clerk and after getting the questions put by him and the answers given by the petitioner recorded got the statement signed by the petitioner and issued the impugned order, relying on some material collected in the course of ex parte enquiries held without intimation to the petitioner and without giving him an opportunity of cross -examining the witnesses or producing his defence, that section 13 of the Act as original ­ly enacted or as amended by Act XIII of 1970, does not authorise the infliction of punishment without holding a formal enquiry, taking evidence in the presence of the accused, giving him an opportunity of cross -examining the witnesses and producing his defence, that none of these formalities having been observed in the instant case by the respondent the order passed by him cannot be upheld, that there is no provision in the Act for revocation of the permission granted under section 5 of the Act, that the trees on being purchased by the petitioner had become his property and the restrictions imposed by the Act and the rules made thereunder violated the petitioners fundamental rights under Article 19 (1) (f) and (g) of the Constitution and that sections 8 and 9 of the Act and Rules 9 of the Rules framed under the Act are ultra vires.

(3.) IN his affidavit filed in reply to the petition respondent No. 2 has inter alia averred that the petition is not maintain ­able as the alternative remedies of appeal and revision open to the petitioner were not availed of by him and that the petitioner had removed the timber from the places of felling of the trees in clear violation of the conditions and the terms of the permit and the rules made under the Act, that no timber of any specified tree for which permit is granted can be removed from the place of felling without the previous sanction of the Tehsildar, that the timber having been removed without such permission the provisions of the Act and the rules have been violated, that in the course of his statement before the specified authority, the petitioner had admitted that he removed the timber without securing permission from the Tehsildar, that permission for felling the trees and removal and export of the felled stock is granted by the prescribed authorities after satisfying themselves that the conditions laid down in the Act and the rules made thereunder have been fulfilled and that the decision of the authorities is final and cannot be questioned. The respondent has further urged that the purchase of walnut trees can be made only by persons who are registered exporters and the petitioner is prohibited under the provisions of the Act to purchase the same, that the petitioner not having obtained the requisite certificates could not be granted the permission for felling the trees, that the petitioner never represented to him that he was an exporter of the walnut stumps or that he had any document to show that he had entered into an agreement with any exporter, that the petitioner was transporting walnut wood in violation of the provisions of the Act and the Rules made thereunder, that the truck when seized did not carry form No. 25 and as such the transport was illegal, that the wal ­nut wood was seized according to the provisions of the Act and the rules made thereunder, that half dry trees could not be permitted to be felled and the permit in favour of the petitioner was issued due to a bona fide mistake, that the reports made by the Subordinate Revenue officers were found to be against facts and the petitioner had felled the trees and removed the wood in violation of the provisions of the Act and the rules made there ­under, that the impugned order was passed by respondent No. 2 after proper inquiry held in accordance with the principles of natural justice, giving an opportunity to the petitioner to ex ­plain his case and satisfying himself that the felling of the wal ­nut trees and transport of the timber extracted therefrom was in contravention of the provisions of the Act and the rules made thereunder, that there has been no interference with the funda ­mental rights of the petitioner, that the provisions of the Act and the rules made thereunder which are meant to maintain and preserve the economy of the State and prevent illegal des ­truction of the material required by the artisans for earning their livelihood impose reasonable restrictions in the interest of a large section of the public of the State.