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2008 DIGILAW 380 (JK)

Sat Bhama Thakur v. State

2008-10-13

SUNIL HALI

body2008
1. Petitioner through the medium of present writ petition seeks quashment of Order No.1622-43/HAD/CCF dated 02.12.1999 to the extent it relates to him, with a further writ of mandamus directing the respondents to allow the petitioner to transport the finished wood (Door and window frames) from village Atholi Padder, Distt. Kishtwar to Paloura Top, Jammu being the lawful owner of the same. 2. The facts of the case are that the petitioner possess a ancestral house at village Atholi Padder, Distt. Kishtwar. He has also purchased a house at Paloura Top, Jammu through registered sale deed. The petitioner moved an application before respondent No.3 making a request for transportation of finished wood (doors and window frames) taken out of dismantled house at Atholi- Padder from Atholi Padder to Jammu. The petitioner submits that the wood used in the ancestral house was of the proprietary land whose permission was also got from the D.C. Doda in the year 1975 but in the fire incident took at his shop in the year 1991 record and documents of said timber were gutted with all other valuable material. Despite the fact that wooden frames belong to the petitioner as the same have been taken out from the dismantled ancestral house of the petitioner at Atholi Paddar, the petitioner is not being allowed to transport the same from Atholi Paddar to Jammu by respondents for using the same in the newly constructed house in Paloura, Jammu. It is submitted by the petitioner that it is personal property and she has every right to use the same in a way she lies and denial on the part of the respondents for not allowing the petitioner to transport the finished wood amounts to violation of legal and fundamental rights of the petitioner. 3. On the other hand, the respondents have filed objections stating therein that the petitioner was attempting to remove and transport the deodar timber from Paddar to Jammu without any permission sanction/authority issued by the competent authority. It is worthwhile to mention here that removing the deodar timber from one place to another is strictly banned, particularly when it is to be taken from one district to another and out of the one forest circle to another. The authority competent to issue the valid permission is only the Chief Conservator of Forests. It is worthwhile to mention here that removing the deodar timber from one place to another is strictly banned, particularly when it is to be taken from one district to another and out of the one forest circle to another. The authority competent to issue the valid permission is only the Chief Conservator of Forests. The respondents have stated that no other person either the Deputy Commissioner or the District Development Commissioner or any authority from the Police Department is competent to issue such a permission. The petitioner does not possess any permission in this regard and as such, the case of the petitioner is ill founded and merit dismissal. It is further case of the respondents that as per Section 15 of the J&K Forest Act, it is the Chief Conservator of Forests only who is competent to control the movement of the timber and unless the permission is granted by the said authority, the deodar timber cannot be removed in any shape i.e un-finished, finished, semi finished and from or a dismantled house etc. or from any other source. 4. I have heard learned counsel for the parties and perused the record. 5. It is not in dispute that the petitioner intends to transport wooden frames from her village Atholi Padder, District Kishtwar to Paloura Top, Jammu. The said wooden frames and shutters have been prepared out of the dismantled house by the father of petitioner and that wooden frames belong to the petitioner. This fact has been confirmed by the respondent No. 5, vide its communication dated 24.9.2007. The only dispute to be determined in this case is whether the petitioner can be permitted to transport the finished wood in the shape of doors and windows after being prepared out of the dismantled house from village Atholi Padder, District Kishtwar to Paloura Top, Jammu where the petitioner intends to construct her own house. 6. The movement of timber cannot be permitted except as permitted by the Forest Act. Section 15 of the Forest Act empowers the Government to regulate the transit of forest produce. The Government is competent to frame rules to regulate transport of all the timbers and other forest produces. The Government In pursuance of aforementioned powers framed Land Transport Rules, 1987. The movement of timber cannot be permitted except as permitted by the Forest Act. Section 15 of the Forest Act empowers the Government to regulate the transit of forest produce. The Government is competent to frame rules to regulate transport of all the timbers and other forest produces. The Government In pursuance of aforementioned powers framed Land Transport Rules, 1987. Rule 4 of the said Rules is reproduced hereunder: "No timber or other forest produce shall be moved on any route on which a depot or check post has been established unless covered by a pass issued by the Forest Officer or the Revenue Officer or by the owner of a private forest or his agent." According to this rule, no timber or forest produce shall be moved on any route of which, depot or check post is established, unless it is authorized by issuance of pass by the Forest Officer or the Revenue Officer or any other private authorized agent. Such passes shall be in the form as has boon prescribed by the Chief Conservator of Forest who shall specify the kind and quantity of the timber. 7. Rule 6 provides that passes issued by the Revenue Officer or the owner of a private forest or his agent, shall be exchanged for a pass issued by the Forest Officer at the forest depot or check post to which the timber or other forest produce covered by the pass is brought. 8. So regulation of movement of the timber has been stipulated in consonance with Rule 4 of Land Transport Rules. It has been brought to the notice of the Court that Chief Conservator of Forest, Jammu vide his communication dated 2.12.1999 directed all the DFOs not to permit old dismantled wood from one place to other, which find way out side the Check Post. Import of this order as interpreted by the petitioner is that DFO refuses to issue permit for transportation in view of this circular. The DFO as in his communication dated 24.9.2007 was requested for issuance of transport finished doors and shutlors, expressed his opinion that in view of the direction of Chief Conservator of Forest, Jammu, no permission can be issued. Order issued by the Chief Conservator of Forest, Jammu is purely administrative and it does not conform to the provisions of Forest Act. Order issued by the Chief Conservator of Forest, Jammu is purely administrative and it does not conform to the provisions of Forest Act. Order impugned is only regulatory and it does not in any way restrict the powers of the Forest officer to issue Form No. 25 for transportation of the timber. No executive order can whittle down the statutory powers exercised by the statutory authority. The D.F.O. while granting permission for transportation of timber does so strictly in accordance with the Forest Act and Land Grant Rules issued in pursuance to the said Act. 9. I, therefore, accordingly hold that DFO is competent to issue permission for transportation of timber under Land Grant Rules. The communication issued by respondent No. 2 shall be treated to be as nonest in the eyes of law in case it restricts the powers of DFO in issuing of Form 25. 10. I, accordingly, direct DFO concerned to issue requisite permission in favour of the petitioner under Land Transport Rules within 15 days from the date a copy of this order is server upon him by the petitioner. It is, however, made clear that petitioner will satisfy all the requirements for such permission as required by the rules. This petition is accordingly allowed. Disposed of.