J K TIMBER TRADER Vs. GOVT OF J&K

JUDGEMENT

(1.) THIS is a writ petition under section 103 of the Jammu and Kashmir Constitution and Article 32 (2 -A) of the Indian Constitution to quash the order No. 53 -55 of respondent Nos. 2,3,4 and 5 dated 16 -12 -1966 and a writ of Mandamus or Kashmir Law Journal other appropriate writ. The allegation of the petitioner is that he is an approvad forest lessee in State of Jammu and Kashmir. The lease of dapartments 4b, 5 and 7 of Chiralla Jangalwar & Badarwah Coupe 1960 -64 was granted to the petitioner by respondent No. 1 by its order No. Best/38/59 -JL dated 10 -8 -1961 for a consideration Rs. 52,00,000/ -. The petitioner paid the security Rs. 52.000/ - and in pursuance of the Government order referred to above, the petitioner executed an agreement on 14 -3 -1960 with the respondent No. 1 for this lease. That the petitioner lease is one of the major leases of the chenab Valley. According to the original terms the of lease, the whole produce was to be removed by the end of March 1967 by the petitioner from the forest. Due to climatic disturbances, labour Imitations, serious dislocation and ,uprecedinted rains in 1963 the extraction work was completely based. On the representation of all the lessees of the State bringing to the notice of the Government the above calamitied one years extension was granted for working out their respective leases to different lessees by the respondent No. 1 by means of its order No. FST/165/63 of 1963. This extension was granted by virtue of clause 43. Before this extension could be availed of by the petitioner, it war between India and Pakistan broke out and again the work of exploitation of the leased forest the petitioner came to a standstill because irreparable huge monetary loss wa,s caused to the petitioner. The forest lessees again approched the Government for extension of time, which was accepted by the Government and one years extension in general was granted in favour of lessees including the petitioner. This order of the Government is FST/155/66 dated 23 -11 -1966. The clauses 11 and 12 of the original agreement of the petitioner stood changed as under : - Clause 11 15 -13 -1967 and end of Clause 12 March 1969.

(2.) THIS extension was in addition to the one, year extension granted previously by the respondent No. 1 in the year 1963. The petitioner in conformity with the extension granted to him on the Basis of the Original agreement made arrangements of extraction of the forest, paid huge amounts of money in advance, installed at huge cost two saw mills in the forest, employed skilled and un skilled labour for the speedy exploitation of the forest. All of a sudden the respondent No. 4, who is the Forest Range Officer concerned, by means of his notice No. 53 -55 dated 16 -12 -1966 directed the petitioner to stop the working, extraction and operation of the forest. The petitioner was prevented from carrying on the extraction and exploitation work of his leased forest by the order of the respondent No 4, which was ultra vires, illegal and violated the fundamental rights of the petitioner. This was a clear case of discrimination and * arbitrary and malafide use of power by the respondent The contention of the petitioner was duly supported by the Divisional Forest Officer Badarwah Forest Division, who is respondent No. 5 in this petition, by means of his letter No. 3 12/C. VIII -118 dated 28 -1 -1967 but no heed was paid to it by the first three respondents namely the State of Jammu and Kashmir, Chief Conservator of Forests, and Conservator of Forests, Chenab Circle. The petitioner further states that he is the brother of the ex Prime Minister of the State, Bakshi Ghulam Mohammad and therefore the respondent No 1 through tbe instrumentality of other respondents in order to harm the petitioners reputation and cause him joss, has issued there arbitrary instructions. Even after this general extension was granted by the Government by means of its order above referred to, the Government granted further extension in favour of other lessees vide its order No 373/C VII 692/41 dated 2 -6 -l967. The petitioner has been singled out and a differential treatment has been meefed out by the respondents to the petitioner. The petitioner cannot be deprived of the benefit given to him by the two extension orders passed by the Government. The orders of 16 -12 -1966 and 2 -1 -1967 issued By the respondent No. 4 the petitioner not to enter the forest compartment 7 Cheralla Range Badarwah Forest Division are without jurisdiction and contrary to the order issued by the respondent No. 1. That the respondent No. 4 had no power to issue such orders. The order is ultra vires. It denies equal protection under the law to the petitioner and is an abuse of the process of the law and the power vested in the State and its employees.

(3.) THE petitioner has placed a copy of the order of the Range Officer, respondent No. 4 i. e. Order No. 53 -55 dated 16 -12 -1966 and another order of one Falil Singh in -charge felling directing the petitioner to stop all work inside the Coupe after 15th December 1966 and further prohibiting the petitioner to entei the forest after 15 -12 -1966. The petitioner has also placed a copy of letter from Divisional Forest Officer Bhadarwah to the Conservator of Forests, No. 3112/C VIII 118 dated 28 -1 -1967 in which this gentleman has given the factual position of the lease and recommended that the petitioner be given the benefit of the two Government orders in extension of the time of working of the lease. On that date the D. F. O. reports that there is an outstanding of Rs. 15,49,078 as royalty against the petitioner. Another copy of order FST/155 of 1966 dated 23 -11 -1966 has also been placed on the file by the petitioner. This order recites that extension has been granted by one year in case of forest lessees who have suffered loss during the Indo -Pak conflict of August 1965 and deferment of royalty payments that had fallen due from 1st April 1965 to 1st April 1966 by one year. This order has two Annexures A and B attached to it. The name of the petitioner appears in this Annexure B at item No. 8 and it is shown under clause 12 the period would be 3/68 and under clause 11 the pariod would be 15 -12 -69 This annexure has been put on the file by the res -pondent.