HANS RAJ Vs. STATE OF J&K

JUDGEMENT

(1.) BY this writ petition under section 103 of the Constitution of Jammu and Kashmir, the petitioner challenges the action of respondent No. 2, who issued orders for forfeiture of a sum of Rs. 15, 000/ - deposited by the petitioner as security on account of the fact that the seizure was effected of the 15 fell Pine trees, which were carried by transport after sawing the same from Jammu to village Rabta Tehsil Jammu belonging to the petitioner. The short facts out of which the present petition arises are that the petitioner owns a land bearing Khasra No. 501/288 at village Rabta Tehsil, Jammu, wherein he had grown Pire trees in the land in his possession as owner. In order to get his house reconstructed for residential purposes cut 15 Pine trees of his own for utilization in the reconstruction of his house at Rabta Tehsil Jammu. Since there was no arrangement for sawing the said wood trees to Jammu for sawing, while the said Pine wood in the form of logs loaded in the truck reached near Janipura, the Range Officer concerned of the Forest DepNment stopped the said truck and seized the wood in question on the assumption that the said logs are cut from the forest land. The petitioner demonstrated that the timber in question belongs to him was being brought from the land owned by him and had no concern with the department, despite that the Range Officer asked to deposit a sum of Rs. 18, 000, - as security with the condition that in case the same is proved to be property of the petitioner, the money so deposited shall refunded to - him. Faced with the situation petitioner could deposit only Rs. 15.000/ - towards the security and promised to deposit remaining Rs. 3, 000 - subsequently thereafter the petitioner submitted the report of the Revenue Patwari annexed with the petition as Annexure -A with copy of khasra No. 501/288 belong to the petitioner and his brothers, which is under their personal cultivation. The said fact is corroborated by the patwari of the forest department also, who has also admitted the ownership of the trees out of which wood was obtained as belonging to the petitioner and which was fit for the reconstruction of the house. It is further submitted, despite all that respondents ordered the said sum of Rs. 15. 000j - to be forefeited to the Government and got the same deposited in the Government Treaury and started demanding Rs. 3, 000/ - more. In addition to that the seized Pine wood in dispute was directed to be transported to the Forest Depot and get it auctioned and the auction money to be deposited in the Government Treasury.

(2.) BEING aggrieved against the above said action of the forfeiture of the f mount and a demand of Rs. 3, 000/ - more coupled with the order of the transportation of the seized wood to the forest despot and a direction for its auction, the petitioner has come up before this court praying for a writ of certiorari or any other appropriate writ or direction for the quashing of the order with respect to the deposit of the money and its forfeiture and also taking the Pine wood belonging to the petitioner to the forest depot and a direction for its auction. Petitioner further challenges the above said action en the grounds that the order is in excess of the jurisdiction, unconstitutional and deprivation of the property including the seizure thereof and also claimed the consequential relief of the release of timber and that of the refund of the money deposited by him. The respondent No. 2 in reply contested the writ petition and made a preliminary objection that an enquiry regarding cutting of the wood and its ownership was still going on, when the petitioner has filed this petition in haste, thus the petition is premature. On merits the ownership of petitioner about the growing of the Pine trees in the private land is denied. That the Pine tree being a royal tree even it was in his land should have been cut only with the permission of the competent authority, petitioner having failed to do so and having failed to do so and having failed to furnish the approved plan of the house in which the said timber was to be utilized in order to know about the quantum of the requirement, the cutting of the trees was unauthorised and illegal. However, it is admitted that the petitioner was found carrying on one truck load of Pine wood to Jammu of course without the permission of the authorities and further pointed out that the total wood cut by the petitioner constitutes about 7 truck load, whereas only one truck load has been seized. Getting the deposit of Rs. 15, 000/ - and demand of rest of Rs. 3, 000/ - is also not disputed, about which it is submitted that the investigation was still going on, wherein the petitioner can prove his case in order to refund of the amount, Patwari had no jurisdiction of authenticating the ownership. Fore -feature of the amount of Rs. 15, 000/ -to the State is denied, but the seizure of the wood is not disputed, which has been taken to the forest depot.

(3.) LEARNED counsel for the petitioner vehemently argued by placing reliance on various provisions of the Forest Act, 1987/AD) submitted that even if for the sake of arguments, it is found that the disputed Pine trees are cut without permission or that the same are taken from the Forest land, the manner adopted by the respondents is not warranted by law with special reference to section 8 and Section 13 of the Forest Act that at the most the power vested with the authority is to get the petitioner prosecuted for the violation of the provisions of the Act and even if the seizure is effected, there was no right with the respondents to compel the petitioner to pay rs. 15, OOO/ - as done under duress and further to demand Rs. 3, 000/ -as stated. Learned counsel for respondent No. 2 in reply first of all submitted that since the petitioner has come to this court in haste and got the stay order, the investigating agency could not proceed further to come to a conclusion regarding the ownership of the seized wood and then on merits he submits that the power to seize the forest produce, which is a royal tree as defined under section 36 of the Jammu and Kashmir Land Revenue Act, 1996 (1939 A. D.). the petitioner even if the said trees were standing in his own field had no right to cut the trees without obtaining permission of the competent authority as ultimately the right to trees vest in the State, thus there is no illegality in seizure of the said timber. Section 15 of the Forest Act provide for the regulation for the transport of timber in transit and of forest produce and section 26 of the Forest Act empowers the respondent No. 2 to seizure of property liable to confiscation and section 38 provides for the compounding of offence. The cumulative effect of the above said provisions abundantly empowers the competent officer to seizure the timber in transit and in lieu of arrest of the of the person carrying illicit timber, the matter can be compounded by getting the deposit of the sum of money accepted by way of composition fee which shall in no case be less than the amount involved in the loss caused by such offence.