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2010 DIGILAW 422 (JK)

State v. Sat Bhama Thakur

2010-07-30

J.P.Singh, MOHAMMAD YAQOOB MIR

body2010
J.P. Singh, J. 1. Claiming to be the owner of the finished wooden material (doors and window frames) made out of the timber of her father's dismantled house, Smt. Sat Bhama Thakur, the respondent, approached the Chief Conservator of Forests, Jammu and Kashmir, Jammu seeking permission to transport the finished wooden material from village Atholi Padder, District Kishtwar, to Paloura Top, Jammu. 2. Apprehending that her application may not be granted in view of Chief Conservator of Forests, Jammu's Circular No.1622-43/HAD/CCF dated 02.12.1999, in terms whereof all Divisional Forest Officers had been directed not to permit movement of dismantled timber, she filed Writ Petition OWP No.151/2008, seeking, quashing of the Chief Conservator of Forests's circular besides a direction to the State-respondents to permit her the transportation of the finished wooden material. 3. Contesting the respondent's claim of ownership to the finished wooden material, it was stated by the appellants, in their response to the Writ Petition, that failure of the respondent to prove her ownership over the timber in question disentitles her to the grant of permission for transportation of the finished wooden material. 4. A learned Single Judge of this Court, has allowed the respondent's Writ Petition directing the concerned Divisional Forests Officer to issue requisite permission to the respondent for transportation of timber under Land Transport Rules, inter alia, holding the Chief Conservator of Forests' Communication dated 2.12.1999 non-est in the eyes of law having been issued in violation of the Land Grant Rules. 5. The State of Jammu and Kashmir and its functionaries in the Forest Department have filed this Writ Appeal questioning the judgment of learned Single Judge. 6. We have heard learned counsel for the parties and perused the material on records. 7. Perusal of the Writ records reveals that pursuant to the orders passed by the Writ Court on respondent's CMP No.215/2008 seeking, inter alia, permission to transport the finished timber from Village Atholi Padder, District Kishtwar to Jammu, a Status Report was filed in the Court indicating that the respondent's Application seeking permission for transportation of Deodar wooden doors and window frames had been rejected. It would be advantageous to refer to paragraph No.7 of the Status Report, which reads thus:- "......... 7. It would be advantageous to refer to paragraph No.7 of the Status Report, which reads thus:- "......... 7. That in the present case there is an inquiry going on with the Divisional Office and an FIR No.02 of 2008 has also been lodged in the Police Station Atholi, Padder, Kishtwar when the petitioner-applicant took away the seized stocks from the custody of sapurdar to her father's place in order to substantiate her claim made in the application. The timber in question was seized by the Range Officer at some other location under the suspicious provision. The Divisional Forest Officer made efforts to find out sanction if any issued by the Deputy Commissioner, Doda in favour of the father of the petitioner-applicant during the year 1975 from the proprietary land, as claimed by the petitioner-applicant, for which an affidavit was given by her father but the same could not be traced in the office of the Deputy Commissioner, Doda. Therefore, the claim of the petitioner regarding the source of timber, is not justified. The consignment appears to be an illicit timber as per the provisions of Section 39 of the J&K Forest Act, which reads as under: "Presumption that possession of forest produce is illicit. When in any proceedings taken under this Act, arises as to whether the possession of any forest produce of a person is illicit or not, such possession shall be presumed to be illicit until contrary is proved by the accused". Considering the aforesaid facts, the application of the petitioner-applicant stands dismissed." 8. It further comes out from the records that the respondents had sought permission of the Court to place on records documents which included copy of FIR No. 2/2008 registered at Police Station Atholi under Section 379 RPC and 6 of the Forest Act, Range Officer Padder Range's report dated 13.03.2008 to the Divisional Forest Officer, Kishtwar Forest Division, besides the Notifications and orders issued by the Chief Conservator of Forest from time to time. 9. Learned Single Judge appears to have determined the petitioner's Writ Petition proceeding on the premise that the appellants had admitted the respondent's ownership over the wooden frames and shutters, placing reliance on the Divisional Forest Officer, Kishtwar's Communication. 10. 9. Learned Single Judge appears to have determined the petitioner's Writ Petition proceeding on the premise that the appellants had admitted the respondent's ownership over the wooden frames and shutters, placing reliance on the Divisional Forest Officer, Kishtwar's Communication. 10. Before proceeding further, a brief reference needs to be made to the report of the Range Officer, Padder Range, and FIR No. 2/2008, copies whereof had been sought to be placed on records by the appellants in the Writ Court. 11. It is indicated in the Range Officer's Report that he has seized 179 pieces of converted timber in the shape of frames, windows and door frames etc. from the premises of one Krishnawati Wife of Late Ved Raj Rathore Resident of Devli-Kundal on 08.01.2008. It was kept on Superdnama of Sher Mohammad. Meanwhile, Beat Officer Atholi had been directed to conduct detailed enquiry about the source and legality of the seized stuff. Smt. Sat Bhama who was stated by Smt. Krishnawati to have converted the finished articles from the timber of old dismantled house had not responded to the Summons issued to her on 13.01.2008, 28.01.2008 and 13.02.2008. Ultimately, when Smt. Sat Bhama did neither present herself nor submitted any record of the seized stuff, Krishnawati too refused to ensure presence of the actual owner of the timber. In the meanwhile, the seized timber is indicated to have been lifted by some unknown persons on March 10, 2008 which was later found in the house of Balraj, stated to be Sat Bhama's real brother. The seized timber was not allowed to be retrieved and the Forest Staff was instead abused, resulting into lodging of FIR No. 2/2008. 12. The Petition filed by the appellants seeking permission of the Writ Court to place on records the documents including those referred to hereinabove does not appear to have been considered, before the final determination of the respondent's Writ Petition. 13. The rejection of respondent's application by the appellants too has gone unnoticed by the Writ Court and the respondent. 14. The Petition filed by the appellants seeking permission of the Writ Court to place on records the documents including those referred to hereinabove does not appear to have been considered, before the final determination of the respondent's Writ Petition. 13. The rejection of respondent's application by the appellants too has gone unnoticed by the Writ Court and the respondent. 14. Looking to the appellants' response to the Writ Petition and the documents sought to be placed on records in support thereof, the appellants cannot be said to have admitted the respondent to be the owner of the timber which had been seized by the Range Officer and in this view of the matter, in the absence of any determination by the Writ Court on the appellants' plea that the respondent had not proved her to be the owner of the finished timber, issuance of direction to the Divisional Forest Officer to issue requisite permission to the respondent for transportation of timber may not be justified, in that, unless proved to be the lawful owner of the timber in question, the respondent may not be entitled to the issuance of permission for transportation of timber. 15. We are, therefore, of the view that before determining the Writ Petition and the petitioner's entitlement for permission to transport the finished wooden material, the Writ Court was required to dwell on the appellants' Response to the Writ Petition, their requests to place on records the documents, and the effect, legality or otherwise of the rejection of respondent's application for transportation of timber by the appellants during the pendency of the Writ Petition, which has not, however, happened, rendering the judgment impugned in the Appeal unsustainable. 16. Accordingly, setting aside the impugned judgment of October 13, 2008, we would request the learned Single Judge to determine the respondent's Writ Petition afresh. 17. This Appeal is, accordingly, allowed. 18. Registrar Judicial to list the respondent's Writ Petition OWP No.151/2008 before the appropriate Bench for consideration.