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2016 DIGILAW 625 (JK)

J. K. Katha v. State

2016-12-02

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. 1. Petitioners call in question the vires of Sub-Rules 2 [The owner shall be free to sell the Khair wood to anybody, for utilization within or outside the state, on the price acceptable to him.] and 4 [The transportation permission may be issued within the state by the Divisional Forest Officer concerned and outside the state by the Empowered officer, for a specified purpose under these rules in favour of khair tree owner or any other agency to whom the owner may have sold the khair wood, khair firewood and other remnants of the felled khair trees.] of the Rule 8 of Jammu and Kashmir Non-Forest Land Khair Trees 'Acacia Catechu' (Management Plan) Rules, 2016 (hereinafter called as Rule of 2016 for short). It appears from the averments made in the writ petition that petitioners are aggrieved of permission, sale and transportation of Khair wood outside the State of Jammu and Kashmir. They are, thus, seeking direction to the respondents to allow and permit utilization of Khair wood exclusively within the State of Jammu and Kashmir and that too for Industrial purposes alone in conformity with SRO 194 of 1995, dated 03.08.1995. 2. The challenge to the impugned Rule has been made, inter alia, on the ground that Rule aforesaid permitting sale and transportation of Khair wood outside the State of Jammu and Kashmir, is in direct conflict with order dated 12.12.1996 passed by the Supreme Court in Writ Petition (C) No. 202 of 1995, titled T.N. Godavarman Thirumulkpad v. Union of India & Ors., which, as contended by the petitioners, has directed stopping of export of timber outside the State of Jammu and Kashmir. The petitioners are also finding fault with the impugned Rule on the ground that the same is in direct conflict with Rule 10 and, therefore, cannot be sustained. It has been contended that on one hand impugned Rule permits sale and transportation of Khair wood outside the State of Jammu and Kashmir and on the other hand Rule 10 provides for control of Khair manufacturing Units in the State in order to see that Khair wood is utilized for industrial purposes only and is not misused or used for other purpose. Lastly, it is stated that impugned Rule will impact Khair based industries of the State and would lead to closure of local Khair wood based industries. Lastly, it is stated that impugned Rule will impact Khair based industries of the State and would lead to closure of local Khair wood based industries. On the basis of the aforesaid position, challenge has been thrown to Rule aforesaid. 3. On being put to notice, respondents have filed detailed response and have opposed the prayer of the petitioners. Writ petition has been resisted on the ground that permission, sale and transportation of Khair wood is regulated by statutory Rule, i.e., Rules of 2016 framed under Section 137 read with Sub-Section 2 of Section 37 of the J & K Land Revenue Act and that Rules of 2016 were permitted to be framed by Hon'ble Supreme Court vide its judgment dated 12.12.1996 passed in Writ Petition No. 171/96, titled Environment Awareness Forum v. State of J & K & Ors. It is insisted that petitioners have not been able to make out any case seeking declaration of Rule impugned ultra vires the Constitution or the Land Revenue Act. It is also averred that at no point of time any assurance was exerted that Khair wood would be exclusively made available to industrial units alone and that no transportation outside the State would be permitted. As a matter of fact NOC was issued by Forest Department with clear stipulation that there would be no commitment/assurance to provide Khair wood as raw material to the petitioners' Unit. It is further insisted that even Rule of 1995 notified vide SRO 194 of 1995, nowhere provides for utilization of Khair wood exclusively by the Industrial Units situated within State of Jammu and Kashmir. The respondents have thus contended that vide Order dated 26.09.2013 passed by the Hon'ble Supreme Court in categoric terms allowed felling of Khair trees in the State of Jammu and Kashmir subject to the condition stipulated in Para No. 45 of the report of Central Empowered Committee. Pursuant to the direction of the Hon'ble Supreme Court, as avowed by respondents, draft Rules were notified and after taking all aspects into consideration, statutory Rule, i.e. Rules of 2016 were notified. The Rules permit sale and transportation of Khair wood outside the State of Jammu and Kashmir and did not put any restriction on its sale within the State of Jammu and Kashmir, particularly, Khair Wood Based Industrial Units. 4. Heard learned counsel for the parties and considered the respective submissions. 5. The Rules permit sale and transportation of Khair wood outside the State of Jammu and Kashmir and did not put any restriction on its sale within the State of Jammu and Kashmir, particularly, Khair Wood Based Industrial Units. 4. Heard learned counsel for the parties and considered the respective submissions. 5. At the outset, it may be pointed out that writ of Certiorari for quashing statutory Rule is not a writ to be asked for. Certiorari cannot be issued to declare legislative enactment and subordinate legislation as ultra vires rather proper writ to be asked for is writ of Mandamus seeking declaration of a particular legislative enactment/subordinate legislative as ultra vires the Constitution. 6. Be that as it may, the petitioners have failed to make out a ground muchless case to assail the impugned Rule. The impugned Rule, as is apparent from its bare perusal, does not restrict right of owner to sell his product within the State of Jammu and Kashmir or to only sell and transport it outside the State of Jammu and Kashmir. The owner of product, i.e., Khair wood, is well within his rights to sell his product either within or outside the State, wherever he gets best price. By putting clog on his right to dispose of his product would be rather unconstitutional. Petitioners have no vested right to claim that owners of the product, as Khair wood in the instant case, should sell their product to them only, particularly those residing within the State of Jammu and Kashmir. Such submission if accepted would put unreasonable restriction on the right of individual to enter into inter State treaty, which is prohibited under the Constitution. Although petitioners have not been able to successfully invoke the doctrine of promissory estoppel, yet in view of the Reply submitted by the State and stipulation contained in NOC granted by Forest Department that there would be no assurance of stopping Khair wood/raw material to the petitioners' industries, even this plea would not be available to the petitioners. 7. It may not be out of place to mention here that Khair (Acacia catechu) grows in sub-tropical areas of Jammu region. Khair is an important cash crop for the farmers of the area particularly Kandi zone. It grows abundantly in unirrigated lands and play important role in compensating the farmers of the area of their less productive land. 7. It may not be out of place to mention here that Khair (Acacia catechu) grows in sub-tropical areas of Jammu region. Khair is an important cash crop for the farmers of the area particularly Kandi zone. It grows abundantly in unirrigated lands and play important role in compensating the farmers of the area of their less productive land. In the year 1995, the J & K Khair Trees "Acacia Catechu" (Regeneration and Utilization) Rules, 1995, notified vide Notification/SRO 194 of 1995, dated 3rd August 1995, to regulate felling of Khair trees standing on State or Private land. The Supreme Court, however, in the year 1998 banned felling of Khair trees growing on both forest as well as private lands. Central Empowered Committee (CEC) constituted on the subject examined the issue of permission for felling of Khair trees and in this regard survey was conducted and report submitted. On the basis of assessment survey report and as per suggestions given by CEC during their visit to different Khair sites in Jammu, SRO 194, (supra) was proposed to be revised. Hon'ble Supreme Court in view of the recommendations of the CEC, passed judgment dated 26.9.2013, felling of Khair trees in the State of Jammu and Kashmir was allowed. In compliance thereof, the Jammu and Kashmir Non-Forest Land Khair Trees 'Acacia Catechu' (Management Plan) Rules, 2016, was notified vide Notification/SRO 111, dated 31.03.2016, [2016 (27) JK Statutes JK-643] was issued. I have carefully gone through the order of Hon'ble Apex Court passed in the writ petition supra. I do not find any contradiction in allowing sale of Khair wood within or outside the State of Jammu and Kashmir that too for its utilization in the industrial units nor do I find any contradiction between the impugned Rule and Rule 10 of the Rules of 2016. Rule 10 only provides for regulating primary wood based industries including Katha manufacturing Unit by the State of Jammu and Kashmir, whereby utilizing Khair wood shall be governed by the J & K Wood Based Industries (Registration and Regulation) Rules, 2012 as a Primary Wood Based Industry. None of the grounds urged by the petitioners to challenge impugned Rule have been found to be sustainable in law. Writ petition is therefore misconceived and, deserves to be dismissed. Ordered accordingly. No order as to costs.