Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 7 (JK)

Estate Officer v. Jitto Devi

2003-02-06

S.K.GUPTA

body2003
1. Aggrieved by the finding returned by respondent no. 2 Jammu and Kashmir Special Tribunal, Jammu, that the Tribunal has jurisdiction to hear the appeal arising under section 48-A of the Jammu and Kashmir Forest Act, 1987, the petitioner have invoked the writ jurisdiction of this Court with a plea that after the issuance of SRO-777 of 1972 dated 01/11/1972, such apeals are maintainable only before the Chief Conservator of Forests and neither the Government nor the Minister has any power to entertain the same and hear the appeal. It is further stated that respondent has exercised the jurisdiction not vested in it and the order impugned is without jurisdiction and untenable in law. 2. A skeyal projection of facts may be noticed in resume. An eviction order pertaining to the Forest Land contained in Khasra No. 1734/1845 located at village Birpur Tehsil samba was passed by the Divisional Forest Office, Jammu against Mst Jitto Devi-respondent No.1. An appeal was preferred before the J&K Special Tribunal to impugn the correctness of the order of the Estate Officer. A plea based on SRO-777 of 1972 was raised before the Appellate Court (J&K Special Tribunal, Jammu) that it is only the Chief Conservator of Forests authorized to hear the appeal under section 48-A of the forest Act and respondent no.2 has no jurisdiction. The Appellate Court, after hearing the parties and perusing the relevant provision of law touching the matter in controversy, concluded that the appeal is maintainable before the Tribunal vide order dated 20/12/2000, which became the subject matter of challenge in this writ petition. 3. Considered the arguments put forth by the learned counsel appearing for the respective parties and also perused the relevant provision of law meticulously. 4. Mr. S.K Anand learned counsel appearing for the petitioners, at the threshold, submitted that respondent no.2 had only the power to hear the appeals, revisions and review petitions which were maintainable before the Government or a Minister prior to coming the J&K Special Tribunal Act 1988. His further submission is that an appeal arising under section 48-A of the Forest Act would neither lie before the Government nor the Minister after the issuance of notification SRO-777 of 1972. His further submission is that an appeal arising under section 48-A of the Forest Act would neither lie before the Government nor the Minister after the issuance of notification SRO-777 of 1972. It was only the Chief Conservator of Forests authorized to hear the appeal under section 48-A of the Forest Act and respondents no 2 had no jurisdiction to entertain and hear appeal in such cases. 5. To appreciate debate addressed by the petitioners Advocate Sh.S.K Anand, it will be appropriate to advert to the relevant provision of Forest Act and the J&K Special Tribunal Act 1988. Section 48-A (3) of the Forest Act reads as under:- (3) Any person aggrieved by an order of an Forest Officer under such sub-section (1) may, within such period and in such manner as may be prescribed, appeal against such order to the Government or to such officer as may be authorized by the government in this behalf and the order of the Forest Officer, shall, subject to the decision in such apeal, be final.� 6. A plain reading of the provision makes it abundantly clear that the appeal against the order of Forest Officer would lie before the Government or to such an officer as may be authorized in this behalf, by an aggrieved person. However, with the issuance of SRO-777 dated 01/11/1972, the Government authorized the Chief Conservator of Forest in the Department and vested him with power by sub-section (3) of Section 48-A of the J&K Forest Act (hereinafter referred to as the Act for the purpose of such sub-section). Subsequently, Jammu & Kashmir Special Tribunal Act, 1988 was enforced and the powers to hear the appeals, revisions & review petitions under any law made by the Legislature, that lie with the Government or the Minister, would be preferred and heard before the Tribunal. For facility of reference, section 3 of the J&K Special Tribunal Act is reproduced below in verbatim:- 3. Appeals, revisions etc. For facility of reference, section 3 of the J&K Special Tribunal Act is reproduced below in verbatim:- 3. Appeals, revisions etc. to the Tribunal: (1) Notwithstanding anything contained in any law made by the State Legislature, but save as otherwise provided in sub-section (2) an appeal, revision or review petition which under any such law lies to the Government or a Minister shall, from such date as may be appointed by the Government by notification in the Government Gazette, lie or be so preferred, brought, made or presented to the Tribunal and accordingly any reference in any provisions of such law, which relate to the matters aforesaid, to the Government or the Minister shall be construed as a reference to the Tribunal. (2) Nothing in sub-section (1) shall apply to any appeal, revisions or review petitions arising by or under the provisions of Jammu and Kashmir Grant of permanent Resident Certificate (Procedure) Act, 1963, or the rules framed thereunder. (3) The Tribunal shall also exercise all the jurisdiction, powers and authority in relation to such appeals, revisions and review petitions as the Legislature may by law provide.� 7. The main plank of the petitioners™ argument is that power to hear the appeals arising out of an order passed under section 48-A of the Forest Act vested only with the Chief Conservator of Forests and not with the Government or a Minister, obviously based on SRO 777 of 1972 dated 01/11/1972. Prior to the enforcement of the J&K Special Tribunal Act 1988, such appeals were not maintainable before the Tribunal. That respondent No.2 has not interpreted the provisions of section 3 of the J&K Special Tribunal Act 1988 in its right perpective. 8. It is pertinent to find out that section 3 of the J&K Special Tribunal starts with non obstante clause. A clause beginning with ˜Notwithstnading anything contained in any law made by the State Legislature,™ is something appended to a section in the beginning, with a view to give the enacting part of this section in case of conflicft an overriding effect over the provision or Act mentioned in the non-obstante clause. It is equivalent to sauying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. It is equivalent to sauying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. The phrase ˜notwithstanding anything in™ is used in contradistinction to the phrase ˜subject to™, the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. A non obstante clause must also be distinguished from the phrase ˜without prejudice™. Ordinarily, there is a close approximation between the non obstante clause and the enacting part of the section and the non obstante clause may throw some light as to the scope and ambit of the enacting part in case of its ambiguity, but when the enacting part is clear its scope cannot be cut down by resort to non-obstante clause. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment. 9. The proper approach would be that the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment. Thus paying attention to what has been stated in section 3 of the J&K Special Tribunal Act, it is clearly deducible that the power exercised by the Government or the Minister with regard to hearing of appeals, revisions and review petitions hither-to is vested with the Tribunal. This makes it clearly manifest that the Chief Conservator of Forests is a functionary/agent of the Government, exercised power of appeal on behalf of the Government or a Minister based on notification SRO-777 of 1972. This makes it clearly manifest that the Chief Conservator of Forests is a functionary/agent of the Government, exercised power of appeal on behalf of the Government or a Minister based on notification SRO-777 of 1972. When the powers of the Government or a Minister with regard to the appeal, revision or review have been taken away with the coming into force the J&K Special Tribunal Act, 1988, such powers no longer remain with its functionaries and to act on their behalf. 10. The contention raised by Mr. Anand, learned counsel appearing for the petitioners is, therefore, without substance and does not merit acceptance. 11. The inevitable conclusion, therefore, reached is that appeal arising out of order passed under section 48-A of the J&K Forest Act, 1987 would lie before the Tribunal under the J&K Special Tribunal Act,1988. 12. In the facts and circumstances of the case, I do not find any jurisdictional infirmity in the order impugned propounded by the J&K Special Tribunal, assailed in this petition. For what has been stated and discussed above, there is no merit in this petition and is accordingly dismissed.