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2020 DIGILAW 142 (JK)

All Wood Supplies Union v. State Of J&K

2020-03-06

ALI MOHAMMAD MAGREY, DHIRAJ SINGH THAKUR

body2020
JUDGMENT Magrey, J . (Oral) - In this petition, the petitioner has craved the indulgence of this Court in granting him the following relief(s): 'i. Writ of mandamus directing the respondent No.7 i.e., Deputy Commissioner Kupwara to refrain from cutting and felling of female Russian poplars from his district without waiting for formulation of a policy by the state government in this behalf as directed by the division bench of this Honble Court in terms of aforesaid order dated 26.03.2019 passed by the Honble Division Bench in the PIL (OWP No.834/2019) r/w OWP No. 2383 and annexed to the writ petition as Annexure-IX. ii. Writ of mandamus directing the respondents not to harass the members of the petitioner union from carrying wood and timber other than forest wood and timber from one place to another on the private Challans of the union as already directed by the government and the court without insisting or asking for any other documents such as sale/ title deeds or revenue extracts pertaining the same. iii. Writ of certiorari quashing all the aforesaid tender notices issued by the respondent No.7 i.e., deputy commissioner Kupwara annexed to writ petition Annexure-IX for cutting or selling of all female Russian poplars in different villages of the district Kupwara as directed by him without commissioning of a definite policy to be formulated by the state government in this behalf as directed by the division bench of this Honble Court vide order dated 26.03.2019 as Annexure-IX to the writ petition. iv. Any other writ, direction, order or relief this Honble Court may deem fit in the facts and circumstances of this case.' 2. The facts leading to the filing of the instant petition, as come to fore from a plain reading of the documents appended with the petition, are that in the year 2015, a writ petition came to filed before the single Bench of this Court, being OWP No. 834/2015, wherein the petitioners had sought a direction in the name of the official respondents to get the poplar trees (Russian Species) planted near the divisional line and residential house of the petitioners therein removed. In the said writ petition, in terms of order dated 12 th of May, 2015, this Court, given the nature of public interest involved in the matter, directed all the Deputy Commissioners across the Valley to issue appropriate orders for cutting of Poplar trees of Russian species. Thereafter, the said petition was treated as a Public Interest Litigation and a series of orders/ directions were passed by this Court concerning the menace of poplar trees. Subsequently, vide judgment dated 26 th of March, 2019, the petition was disposed of in view of the fact that various steps were taken by the respondents to mitigate the problems of cotton fall of poplars in Kashmir Valley, as directed by this Court. It was also provided in the aforesaid judgment that the respondents should come up with a policy decision with respect to plantation of poplar trees so that the problems that are being faced by the general public is arrested. 3. The present petition, filed under the title 'All Wood Suppliers Union', claiming to be a trade union of wood and timber growers and suppliers other than the forest wood and timber, having its head office at Parimpora, Srinagar, Kashmir, raises a grievance that the Deputy Commissioner, Kupwara is cutting/ felling of female Russian poplars from district Kupwara without waiting for formulation of the policy by the Government of Jammu and Kashmir as directed by this Court vide judgment dated 26 th of March, 2019. 4. The petitioners are seeking quashment of all tender notices issued by the Deputy Commissioner, Kupwara for cutting or selling of all female Russian poplars in different villages of the district Kupwara. It is stated that the aforesaid process has put the very livelihood of hundreds and thousands of farmers, their families and other people associated with this trade and business, including the members of the petitioner Union, at risk, without any logic or reason, constraining the petitioner Union to approach this Court. It is argued that the members of the petitioner Union, who are themselves growers as well as directly associated with this trade and business, are likely to suffer huge losses and get deprived of their property worth several crores due to the said action of the respondents. 5. It is argued that the members of the petitioner Union, who are themselves growers as well as directly associated with this trade and business, are likely to suffer huge losses and get deprived of their property worth several crores due to the said action of the respondents. 5. Having heard the learned counsel for the parties, perused the pleadings on record and considered the matter, we wish to observe here that it is not in dispute that the pollen of Poplar trees (Russian Species) adversely affects the health of general public, mostly the elderly and the children. It is also of common knowledge that the pollen of these trees has given rise to chest disease in the Valley and that chest disease can, sometimes, even become life threatening, especially for the elderly and children. The health of the general public is of paramount importance than the interests of individuals who plant Poplar trees of Russian species and, thus, there is a dire need of formulation of a policy by the concerned authorities in the Government with respect to planation of Poplar trees. Keeping in view the said endeavor, coupled with the well settled legal position that formulation of a policy is solely within the domain of the executive and that the Courts ordinarily do not interfere in the said process to be exercised by the executive, this Court had directed the respondents to ensure formulation of a policy as regards the planation of the 6. Poplar trees so that the problem that is being faced by the general public is set at naught. 7. In the aforesaid backdrop, the action initiated by the respondent Deputy Commissioner, Kupwara, in directing the cutting/ felling of female Russian Poplars from District Kupwara cannot be said to be arbitrary or illegal, moreso, in absence of any specific policy yet to be formulated by the Government of Jammu and Kashmir. Furthermore, at this stage, no indefeasible right has accrued to the petitioner Union to approach this Court for seeking the relief claimed herein this petition. In the event, the petitioner Union was having any grievance with regard to the action so initiated by the Deputy Commissioner, Kupwara, with reference to cutting/ felling of Russian Poplar trees, they, instead of knocking at the portals of this Court, ought to have approached the Deputy Commissioner for seeking the redressal of the same. In the event, the petitioner Union was having any grievance with regard to the action so initiated by the Deputy Commissioner, Kupwara, with reference to cutting/ felling of Russian Poplar trees, they, instead of knocking at the portals of this Court, ought to have approached the Deputy Commissioner for seeking the redressal of the same. That being so, we do not find any merit in the present petition, as such, same shall stand dismissed, alongwith the connected CM.