AB GANI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application for an appropriate writ for quashing the instructions issued by the respondents and for a declaration that some of the material provisions of the Jammu and Kashmir Preservation of Specified Trees Act No. V of 1969 (hereinafter to be referred to as the Act) are ultra vire1; as being violative of Arts. 14, 19 and 304 (b) of the Constitution of India, and consequently for a writ of Mandamus restraining the respondents from interfering with the exercise of the petitioners fundamental right to carry on trade.

(2.) THE petitioner alleges to have been carrying on the trade of exporting walnut stumps to countries outside India for manufacturing various articles, as a result of which he has been able to earn sufficient foreign exchange for the country. The petitioner states that he had been carrying on this business for almost a decade. In the year 1961 the Government by issuance of certain Notifications attempted to restrict and regulate the export of walnut stumps and thus infringed the fundamental right of some exporters to carry on their business in any manner they liked. One of the exporters, Habib Ullah Dandroo, then approached this Court for an appropriate writ which was allowed, and this court by its order dated 28 -5 -68 in writ petition No. 49 of 1968 quashed the Notification on the ground that it was altra vires. We shall examine the grounds on which the Notification was struck down by this court a little later.

(3.) IT appears that walnut trees in the State serve a two -fold purpose. In the first place so long as these trees are fruit bearing, they become the main source of the walnut fruit industry in the State. Secondly when the trees are dried up, part of their timber is used to feed the wood carving industry of the State, a part is used for fuel and the stumps used for export purposes. It is the last category of the wood which is the subject matter of the trade carried on by the petitioner. The petitioner alleges that the modus operandi employed by him in pursuing his trade was that he used to purchase a number of walnut tree from the owners thereof by advancing them huge sums of money and he had mid an advance of Rs. three lacs alone in Baramulla district to various owners of walnut trees whose names are given in one of the annexures filed along with the petition. The owners of the trees used to apply to the Government for permission to fell the trees and after getting the necessary permission felled the trees and sold the stumps to the petitioner for being exported to foreign countries. The petitioner has filed some annexures to prove that he had entered into a contract with a firm of Czechoslavia for supply of walnut stumps and he had been pressed hard by the Czech firm for supply of walnut stumps which was hindered by virtue of certain provisions of the Act as also certain administrative instructions given by the respondents 2 to 4. It appears that after this court struck down the Notification passed by the Government under the Essential Supplies (Temporary Powers) Ordinance, the State Legislature passed the Act with a view to protecting and preserving the fruit and the wood carving industry of the State on which depends the main structure of the States economy. The provisions of the Act do not at all prohibit the export of walnut stumps but are purely regulatory in character. The petitioner, however, alleges that under the cover of the provisions of the Act respondents 3 and 4 have issued illegal and uncalled for executive instructions which have set at naught the right of the owners of the trees to seek permission of the authorities for felling the trees. Mr. J.N. Bhan appearing for the State submitted that these instructions were of a transitory character and had been issued in order to stop indiscriminate felling of walnut trees without proper verification of the fact whether they were fruit bearing or had dried up. The learned counsel further assured the court that he would see to it that these instructions are withdrawn and no obstacle is placed in the way of the petitioner in carrying on his trade, provided the petitioner was able to get valid permission from the authorities after fulfilling the conditions mentioned in the Act. Had the matter rested here we could have disposed of this petition on the basis of the undertaking given by the learned Advocate for the State, but Mr. Ashoka Sen appearing for the petitioner vehemently assailed the constitutionality of some of the important provisions of the Act and the rules framed thereunder as being ultra vires and, therefore, we have to examine these contentions in greater detail.