AB SAMAD Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an appeal under Clause 12 of the Letters Patent from the order dated 27 -1 -1968, made on the original side of this court by Honble Gurtu, J. vacating the temporary injunction restraining the defendant -respondent from realizing the balance of royalty said to be due on the basis of the agreements (dated 17th Katik 2008 and 9th January, 1961) for sale and purchase of the right of conversion and removal of timber from the trees marked for felling in compartments Nos. 22 (Rest) South Lolab B Coupe, 94, North Lolab B Coupe, 51, 52a, 52b, and 53 (a) South Lolab and 86 North Lolab of Kamraj Forest division Kashmir North Circle. The temporary injunction which has been vacated appears to have been issued on 30 -11 -1967 on plaintiff -appellants application in Civil Suit No. 33 of 1967 for recovery of Rs. 2256541 (claimed as loss alleged to have been suffered by the appellants on account of the failure of the Government to fulfill an implied warranty of soundness in respect of trees and timber) and permanent injunction restraining the defendant from realizing the royalty in regard to the aforesaid compartments.

(2.) DURING the pendency of this appeal, the plaintiffs -appellants filed additional grounds of appeal on 30th July, 1968 challenging the constitutionality of Sections 91 and 92 of the Land Revenue Act as also Section 52 of the Forest Act. By order dated 31 -7 -1968, the appellants were permitted to raise the questions relating to the validity of Section 52 of the Jammu and Kashmir Forest Act and Sections 59, 60, 61, 72, 90 and 91 of the Jammu and Kashmir Land Revenue Act subject to the maintainability of the Letters Patent Appeal. A few days earlier i. e. on 27 -7 -1968, the appellants also filed a writ petition contending inter alia that the amount of rupees fifteen lacs claimed as royalty in respect of compartments Nos. 51 to 53 of South Lolab Range Kamraj Division was not due from them as there was an implied warranty of soundness in respect of the trees and timber which was not fulfilled by the respondent. The appellants also challenged the constitutionality of Sections 59, 61, 62 and 72 of the Land Revenue Act as also Section 52 of the Forest Act on the ground, that these provisions were violative of Articles 14, 19 and 31 of the Constitution of India. On the following day i. e. 31st July, 1968, the appellants filed another application styled as application for amending the writ petition contending inter alia that they had been arbitrarily discriminated in the matter of grant of remissions in respect of tot trees/timber as against large number of persons similarly situate. It was further contended in the petition by the appellants that there is no rationale behind such discrimination, that the Government had arbitrarily failed to adjust the remissions against the amount of royalty sought to be realized from them, that the provisions of Ss. 90 and 92 of the Land Revenue Act which made the provisions of Chapter VII including Sections 59, 61, 62 and 72 thereof applicable to the recovery of other demands are also ultra vires as being violative of Articles 14, 19 and 31 of the Constitution of India.

(3.) AS desired by the respondent and as agreed to by the appellants the writ petition of which notice was taken by the respondent on 31 -7 -1968, subject to all just exceptions, was taken up along with the aforesaid Letters Patent Appeal.