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2008 DIGILAW 285 (JK)

Shankar Timber Products v. State Of J. &K.

2008-07-14

J.P.SINGH

body2008
1. Social Forestry Project, Talab Tillo, Jammu had issued Auction Notice No. 6443-83 dated 22.02.1995 for open auction of standing trees of Eucalyptus and Poplar etc. at Centenary Conference Hall (M.F.P) Godown of Forest Department, Pul-par near Police Lines, Gandhi Nagar, Jammu, on 15.03.1995 at 11 a.m. 2. Petitioner, being the highest bidder was allotted lot No. 1/Jammu of Jammu S.F. Range, and 6/Jammu of Vijaypur S. F. Range for felling/ extraction of Eucalyptus specie of 3698 trees of 459.20 cubic meters volume (lot No.1/Jammu-1880 trees of 278.30 cubic meters volume & lot No. 6/Jammu-1818 trees of 180.90 cubic meters volume). 3. After paying the full amount, the petitioner started felling and transporting the trees allotted to it. It had lifted only 2396.64 cft. of timber (67.86 cubic meters) when Executive Engineer, Irrigation and Flood Control Department, Jammu, respondent No.6, not only stopped its activity of felling and transporting the allotted trees, but also seized about 60 Trolleys of timber felled by it. 4. Regional Director, Social Forestry Project, Jammu, respondent No.4, informed the Executive Engineer vide his Communication No. 2497-2500 of August 17, 1995 that the petitioner, the authorized Contractor, be allowed to go ahead with the felling and transportation of the marked trees from the Canal Bank/Strips, so that the operation was completed before September 15, 1995. His Communication had, however, no effect on respondent No.6. The petitioner approached this Court by his OWP No. 607/95. This writ petition was disposed of on April, 12, 1996 with the following directions:- That the petitioner shall submit his representation to the Commissioner, Public Works Department and take all pleas available to him and as taken in this petition within one week from today and upon that the said Commissioner and the Commissioner-Secretary Forest Department shall convene a meeting and consider the petitioners case after hearing him and allowing him to present his case and pass appropriate orders within two weeks thereafter. The whole exercise shall be completed in three weeks from today. 5. Petitioner was, however, left free to re-agitate the matter, if it was dissatisfied or aggrieved of the decision which the two Commissioners had been called upon to take in the matter. The petitioner, accordingly, filed its representation with the Commissioner-Secretary Works, Jammu and Kashmir Government, Jammu on April 23, 1996. The respondents, however, did not pass any orders on the representation. 6. The petitioner, accordingly, filed its representation with the Commissioner-Secretary Works, Jammu and Kashmir Government, Jammu on April 23, 1996. The respondents, however, did not pass any orders on the representation. 6. The petitioner has thus filed this writ petition seeking a command against the respondents to permit it to cut, convert and transport the remaining Eucalyptus and Poplar trees. It further prays for release of the unauthorized seized timber which it says values lacs of rupees. It claims damages to the tune of Rs. 7 lac as well for the illegalities the respondents had committed in depriving it of the timber which it was entitled to transport in terms of the work order issued in its favour by Regional Director, Social Forestry Project on April 4, 1995. 7. Respondent Nos. 5 & 6 have stated in their objections at the pre-admission stage of the writ petition that although the contractors had been permitted to cut only those trees which had been allotted to them by the Social Forestry Department, yet they had indulged in indiscriminate felling of even those trees which had not been allotted to them. They say that the petitioner had not worked according to the work order and had cut trees like Kekar, Shesham and other Poplar trees and had thereby caused damage to the banks of the canal, and it was because of this reason that the indiscriminate felling of trees had been stopped, and the trees already felled seized by the Irrigation and Flood Control Department. 8. Case set up by the petitioner in paragraph No. 7 of its writ petition that 60 trolleys of its felled timber had been un-authorizedly taken away by respondent No. 6 and dumped in its office, has, however, remained uncontroverted. 9. Finding a prima facie case in favour of the petitioner, this writ petition was admitted to hearing and the respondents provided another opportunity to file their response (counter affidavit) to the writ petition. Right of the respondents to file counter affidavit was, however, later closed when despite several opportunities and even last opportunity having been availed of by them, they had opted not to file any response. 10. It was during the pendency of consideration of this petition that learned Advocate General, Mr. Right of the respondents to file counter affidavit was, however, later closed when despite several opportunities and even last opportunity having been availed of by them, they had opted not to file any response. 10. It was during the pendency of consideration of this petition that learned Advocate General, Mr. A. H. Naik, had assured the Court that the matter in dispute would be resolved by passing a Government Order on the report of the Commissioners of Forest and Public Works Departments and the order so passed shall be placed on records. 11. The Social Forestry Department, accordingly, placed on records Social Forestry Order No. Dir/DSF/Estt/2018-20 dated 25.09.2006, in terms whereof the petitioner has been allowed to fell/remove the remaining standing Seventy One (71) trees existing in Strip Plantation/Village Woodlot No. 06-Muralia Dak Bunglow to Darap of Social Forestry Division, Jammu. The Government, however, did not choose to pass any order resolving the remaining controversy between the parties in respect of those trees which had been felled by the petitioner as permitted by the Social Forestry Department and later seized by the Flood Control and Irrigation Department. 12. Mr. S. C. Gupta, learned Additional Advocate General appearing for the functionaries of Irrigation and Flood Control Department, Jammu was, accordingly, directed to report instructions as to why the timber seized by the Irrigation and Flood Control Department had not been released to the petitioner in view of the decision taken by the Commissioners/Secretaries of the two Departments viz. Public Works Department and Forest Department, and if the timber was not available with the Department, what would be the market value of the timber at the time when it so seized by the Department. Department was given an option to indicate as to whether the compensation claim of the petitioner could be settled by the Department at its own level. 13. Irrigation & Flood Control Department, in response, filed their written submissions indicating that the timber seized by them had been taken away by the Social Forestry Department through its contractor. The department was, accordingly, called upon to indicate the name of the contractor who had taken the seized timber. The Department, however, failed to do that. 13. Irrigation & Flood Control Department, in response, filed their written submissions indicating that the timber seized by them had been taken away by the Social Forestry Department through its contractor. The department was, accordingly, called upon to indicate the name of the contractor who had taken the seized timber. The Department, however, failed to do that. They were, accordingly, directed to produce their records so as to ascertain as to whether or not Irrigation and Flood Control Department had released the timber to the Social Forestry Department through its contractor and as to who was this contractor who had received the timber, because the petitioner had denied to have received its timber either from Irrigation & Flood Control Department or from the Social Forestry Department. 14. Records of Irrigation and Flood Control Department have been produced by Mr. Gupta. 15. Case of the petitioner in so far as it seeks a direction to the respondents to permit it to cut, convert and transport the remaining Eucalyptus and Poplar trees is concerned, it needs to be considered for its redressal, in view of Order No. Dir/DSF/Estt/2018-20 dated 25.09.2006 issued by Director, Department of Social Forestry, in terms whereof it has again been permitted to fell/remove the remaining standing Seventy One (71) trees existing in Strip Plantation/Village Woodlot No. 06-Muralia Dak Bunglow to Darap of Social Forestry Division, Jammu. In so far as the resolution of the second issue pertaining to the rights of the parties over the timber felled by the petitioner and reported to have been taken away by respondent Nos. 5 & 6 is concerned, few facts need to be noticed. 16. Although respondent Nos. 5 & 6 had alleged the petitioner to have indulged in indiscriminate felling of trees other than Eucalyptus and Poplar trees allotted to it by the Social Forestry Department, yet its subsequent stance in this case, after the admission of the writ petition to hearing, has been that the seized timber had been lifted by the Social Forestry Department through its contractor and the Irrigation and Flood Control Department was not responsible to compensate the petitioner. 17. In order to find as to whether respondent Nos.5 and 6s stand that the seized timber had been taken away by the Social Forestry Department through its contractor was justified, their records had been summoned. The records produced by Mr. 17. In order to find as to whether respondent Nos.5 and 6s stand that the seized timber had been taken away by the Social Forestry Department through its contractor was justified, their records had been summoned. The records produced by Mr. Gupta, learned Additional Advocate General, however, do not support the stand which the respondents have taken that the seized timber had been taken away by the Social Forestry Department. It comes out from the records that all the timber which the petitioner had felled, had been transported by it, only after requisite transport permission, i.e., Form No.25 had been issued to it in this behalf. Regarding the seized timber, the records are silent as to whether or not any permission for its transportation was ever issued by issuance of Form No. 25 in this respect. There is nothing in the records of respondents Nos. 5 & 6 wherefrom it may be gathered that they had delivered back the seized timber either to the Social Forestry Department or to its contractor. 18. Respondents have not produced any material to support the charge they had levelled against the petitioner of having indulged in indiscriminate felling of trees which had not been allotted to it and justification for the seizure of the timber which the petitioner had felled. 19. Respondent Nos. 5 & 6 have failed to justify their act of seizing the timber which belonged to the Social Forestry Department, which had permitted the petitioner to fell and transport it in view of its having been found the highest bidder to own these trees. 20. As the records of respondent Nos. 5 & 6, produced in the Court, do not refer to any action taken pursuant to the seizure of petitioners timber so it may be safely presumed that either this timber had been misappropriated by the functionaries of Irrigation and Flood Control Department or had been damaged with the passage of time. This is a matter which needs to be enquired into by the Department and appropriate action taken against those who are found responsible for the damage or misappropriation of the seized timber. 21. Be that, as it may, respondent Nos. This is a matter which needs to be enquired into by the Department and appropriate action taken against those who are found responsible for the damage or misappropriation of the seized timber. 21. Be that, as it may, respondent Nos. 5 & 6 having failed to prove their charge against the petitioner that it had indulged in indiscriminate felling of trees other than those allotted to it by the Social Forestry Department, had to justify the seizure of the timber which had been purchased by the petitioner in the auction and had been later felled by it. They have, however, failed to do that and prove its alleged return to the Social Forestry Department. It, therefore, follows that respondent Nos. 5 & 6 had acted illegally in depriving the petitioner of the timber which it had purchased in the auction and which had become its property. 22. Respondent No. 1 through respondent No.2 and respondent Nos. 5 & 6 are thus liable to compensate the petitioner for the loss caused to it. 23. The specific case set up by the petitioner in its writ petition that 60 trolleys of timber lying on the work site allotted to the petitioner by the Social Forestry Department had been taken away and dumped in the premises of respondent No.6 has remained unrebutted throughout the proceedings. 24. In view of the decision taken by the Secretaries of the two Departments, petitioner has been found to be legally authorized to fell the timber. It has thus, accordingly, been permitted to go ahead with the felling and conversion of timber from 71 trees. 25. Keeping in view the order passed by Director, Department of Social Forestry on September 25, 2006, the decision taken by the Secretaries of Forest Department and Irrigation and Flood Control Department, the uncontroverted pleading of the petitioner that its 60 trolleys of timber had been illegally seized by respondent No.6, and the facts and circumstances of the case, I am inclined to hold that the petitioner has been deprived of its property which it had purchased in open auction of the Social Forestry Department, by the functionaries of Irrigation and Flood Control Department, without any justifiable cause. 26. The timber, being no more there thus entitles the petitioner to the compensation for deprivation thereof. 27. 26. The timber, being no more there thus entitles the petitioner to the compensation for deprivation thereof. 27. In order to determine as to how much compensation the petitioner may be entitled to for being deprived of 60 trolleys of timber, the matter may require leading of evidence by the parties before a fact finding authority which may record its finding in this behalf so that appropriate final orders are passed by this Court as to the entitlement of the petitioner to the amount of compensation to which it may be entitled to. 28. In order to do complete and substantial justice, following directions are, accordingly, issued:- 1. Respondent Nos. 3 & 4 shall permit the petitioner to cut and remove the remaining 71 trees existing in Strip Plantation/Village Woodlot No. 06-Muralia Dak Bunglow to Darap of Social Forestry Division, Jammu. Requisite communication/order fixing a time frame for the petitioner to complete the process of removal and transportation of 71 trees in this behalf shall be issued by respondent No.3 to the petitioner, within a period of four weeks. 2. The issue as to the amount of compensation to which the petitioner is entitled to for being deprived of the possession of 60 trolleys of timber which had been unauthorizedly seized by respondent Nos. 5 & 6, shall be enquired into by learned Principal District Judge, Jammu who shall afford reasonable opportunity of leading evidence and hearing to the parties, before recording its finding, on the issue. Learned Principal District Judge, Jammu shall conclude the proceedings and transmit its finding on the issue in question to this Court preferably within a period of four months. 29. Parties through their learned counsel are directed to appear before learned Principal District Judge, Jammu on 11.08.2008.