Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Bhat And Others vs State Of Jk And Another on 30 May, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
Serial No. 11
Regular list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561_A No. 67/2015
MP No. 01/2015
Date of Order: 30.03.2018
Mushtaq Ahmad Bhat and Others
Vs.
State of JK and Another
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Shafaqat Nazir, Advocate
For respondent(s): Mr M. A. Beigh, AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. By the medium of this petition filed under Section 561_A Cr. PC, the petitioners have sought the indulgence of this Court in quashing the FIR bearing No. 19/2015, registered against them at Police Station Chari-Shareef, for the commission of an offence punishable under Section 436-A RPC.
2. The pith and core of the petition of the petitioners is that due to untimely snow, torrential rains and thundershowers, massive landslides were triggered in many parts of the valley. Budgam district was the worst hit and in the village Laden alone 16 people got killed due to landslides. The petitioners reside in village Hafroo Batapora, which is situated at a distance of 2 Kms only from village Ladden and, as such, a red alert was declared in Hafroo village as well. Copies of the news reports published in a local daily in this regard have been attached to the petition as Annexure 'P'. The petitioners have proceeded to state that a graveyard is situated in the vicinity of their residential houses in which besides others, some walnut trees are also standing. The terrain of the land in the said 561_A No. 67/2015 Page 1 of 7 village is like a steep slope and the residential houses of the petitioners fall at the lower end of the slope with graveyard at the higher end thereof. The trees including the walnut trees standing in the graveyard protrude over the residential houses of the petitioners. Due to the incessant and torrential rains and snowfall some braches of some trees broke down partially and remained hanging over the residential houses of the petitioners. The petitioners immediately approached the concerned authorities to seek permission for removing the said hanging branches of the walnut trees but unfortunately got a lukewarm response. With the imminent threat to their life and property, the petitioners were left with no option but to remove the said broken semi dry branches and piled the wood thereof in the graveyard itself. The petitioners proceed to state that on 13.04.2015, some of the neighbours of the petitioners, who have animosity and ill feelings towards the petitioners lodged a complaint before the Tehsildar Chadoora, accusing them of looping the branches of the walnut trees standing in graveyard and, accordingly, prayed for initiation of action against them.
3. Upon the receipt of the complaint, the concerned Tehsildar deputed a team of officials of the revenue department to visit the spot to assess the facts. The petitioners after being summoned attended the Court and narrated the facts before him. However, the Tehsildar concerned proceeded against them in accordance with the provisions of J&K Land Revenue Act and J&K Preservation of Specified Trees Act and imposed a fine of Rs. 3500/- on the petitioner Nos. 1 & 2.
4. Dissatisfied with the order of the Tehsildar concerned, the neighbours of the petitioners lodged a complaint against them before the Station House Officer, Chari-Shareef, regarding the same Act, which was also brought to the notice of the concerned Tehsildar with the object that the petitioners are put to harm particularly the petitioner No. 3, who is government employee and an FIR bearing No. 19/2015 for an offence under Section 436-A RPC, came to be 561_A No. 67/2015 Page 2 of 7 registered against the petitioners, which is impugned herein this petition. It has been stated that the FIR registered against the petitioners has been registered in violation of the Constitutional and the Statutory provisions. It has been added that Section 37 of the J&K Land Revenue Act deals with the Reserved Trees and provides that a reserved tree shall not be sold or converted by any person to his own use otherwise than in accordance with a general or special order of the Government. The Section further empowers the government to declare by notification/order, the trees of any description specified in notification as reserved ones. Accordingly, in terms of Cabinet Order No. 621-C of 1955 dated 23rd of May, 1955, it was directed that Walnut trees shall be deemed to be reserved trees in Kashmir province and the felling/removing of walnut trees without the permission in writing from the competent authority is prohibited.
5. The Station House Officer, Chari-Shareef, has filed the status report, wherein it has been stated that the offence committed by the petitioners is a serious one and on the basis of a complaint filed by the complainants, an FIR bearing No. 19/2015, was registered at Police Station Chari-Shareef, with which the investigation commenced. During the investigation of the case, it appears that a prima-facie case is established against the accused for the commissions of offences punishable under Section 436-A RPC. The petitioners have no case at all at this stage as the investigation of the case is in vogue. It was also been stated that every opportunity of being heard will be given to them during the course of the investigation of the case. In the end, it has been stated that the petition of the petitioners is premature and be dismissed.
6. Heard and considered.
7. Section 37 of the J&K Land Revenue Act, deals with reserved trees and provides that the trees of the description detailed therein shall be deemed to be reserved trees. It also provides that the Government may, by notification, order that trees of any description specified in such notification shall be deemed to be reserved trees in any local areas specified therein. It provides further that 561_A No. 67/2015 Page 3 of 7 reserved trees, although standing on private land, shall not be sold or converted by any person to his own use otherwise than in accordance with a general or special order of the Government or of an officer empowered by the Government in this behalf, under the rules in force for the time being and Section 38 of the said Act runs under the head "Penalty"
8. Learned counsel for the petitioners has referred to the Cabinet Order bearing No. 621-C of 1955, Section 38 of J&K Land Revenue Act and Section 13 of the J&K Preservation of Specified Trees Rules, 1969 in his submissions and these require to be delineated herein below:
Cabinet Order No. 621-C of 1955, by which the Government ordered that the walnut trees shall fall within the description of reserved trees reads as under:-
"In exercise of powers conferred by Section 37 of the Jammu and Kashmir Land Revenue Act, 1996, the Government hereby direct that the trees of the following descriptions, namely:-
(i) Walnut
(ii) Apple
Shall be deemed to be the reserved trees in the Kashmir Province.
The Government further direct that a tree falling within the above description standing on private land shall not be felled or removed without the permission in writing of the Tehsildar in the case of an apple tree and of the Commissioner in the case of a walnut tree."
Section 38 of J&K Land Revenue Act empowers an Assistant Collector not below the rank of a Tehsildar to impose fine upon a person who does anything in contravention of Section 35-A, 36 or 37 of J&K Land Revenue Act, Section 38 of J&K Land Revenue Act is reproduced herein below:
"A person proved to the satisfaction of an Assistant Collector not below the rank of a Tehsildar to have done any Act prohibited by Section 35-A, 36 or 37 shall be liable to a fine which may extent to rupees five hundred and the wood of the trees so felled from State or private land shall be confiscated and also be liable to make good to the State any loss or damage caused by such Act:
Provided that, a person who has been fined under this Section shall not be prosecuted under the Criminal Law for the same Act and a person who has been punished under the Criminal Law for 561_A No. 67/2015 Page 4 of 7 any Act prohibited by Section 35-A, 36 or 37 shall not be liable to a fine under this Section.
Such loss or damage shall be assessed by the Assistant Collector and the amount may be recovered from the person held liable as if the same were arrears of the land revenue."
Section 13 of the J&K Preservation of Specified Trees Act, 1969 reads as under:
Submission of report to the Government:- (1) A report on the lines indicated in Form G shall, with ten spare copies, be submitted to the Revenue Department by each prescribed authority through proper channel to reach not later than 15th April annually for the year ending the month of March. (2) One copy of the report referred to in sub-rule (1) shall be sent by each prescribed authority to the Financial Commissioner Jammu and Kashmir Government, for his review, of which one copy each shall be forwarded by him to the Revenue Department and to the reporting authority. The Revenue Department shall submit the report alongwith a copy of the review and its own comments to the Council of Ministers for information.
9. The cutting of walnut trees or any part thereto is prohibited and made punishable under Section 38 of J&K Land Revenue Act and Section 13 of J&K Preservation of Specified Trees Act. The Tehsildar Chari-Shareef, after taking cognizance of the fact that the petitioners have looped the branches of the walnut trees imposed a fine of Rs. 3500/- on them by an order dated 17.04.2015, which is attached to the petition of the petitioners as Annexure 'P1' and it reads thus:
"3.Whereas the accused attended this Court on 16.04.2015 and stated that the branches of trees were damaged/partially broken due to recent snowfall and wind and were likely to fall on residential houses and other property of accused. The partially damaged branches were removed by pulling in order to avoid damage to the life and property of the accused as the branches surrounded their two houses. They further stated that since 16 persons were killed due to heavy rain and landslides in village Ladden and the whole district was under Red Alert, the accused were panicked and the branches were removed with this objective only and not looped. They further stated that in the view of the threat perception they were not in a position to approach the concerned authorities to seek proper permission. The accused no. 3 showed his duty slip and 561_A No. 67/2015 Page 5 of 7 pleaded that he knows nothing above the incident and was not present on the spot at the time of occurrence.
4. Whereas the team of Revenue Officials with Naib Tehsildar concerned conducted on spot verification and observed that few semidry branches of walnut trees were looped and are pled in the graveyard land. It was also observed that the graveyard is on higher end of slope just adjacent of the residential houses of the accused persons. Though there was imminent threat due to landslides and hanging braches of walnut trees to the life and property of the accused persons but sine proper procedure was not followed, therefore, the accused persons need to be proceeded in accordance with provisions of Land Revenue Act, J&K Specified Trees Preservation Act. The prospective value of branches of trees has been estimated as Rs. 2500/- In view of this and in consonance with Section 38 of J&K State LRA and Section 13 of J&K Specified Trees Act the accused are fined of Rs. 3500/- which shall be recovered as arrears of land revenue and deposited in Government treasury. The wood of walnut trees is confiscated.
Complaint is, accordingly, disposed of."
10.By his order, the Tehsildar concerned has imposed a fine of Rs. 3500/- on the petitioners in the wake of similar allegations and on the same set of facts as have been put forward against them in the FIR. Section 38 of the J&K Land Revenue Act, empowers an Assistant Collector not below the rank of a Tehsildar to impose a fine upon a person who does anything in contravention of Section 35-A, 36 or 37 of J&K Land Revenue Act. The rider added to Sub Section (1) of the Section 38 of the J&K Land Revenue Act, makes it abundantly clear that a person against whom a fine has been imposed, under such Section shall not be prosecuted under the Criminal Law for the same Act and a person who has been punished under the Criminal Law for any Act prohibited by Section 35-A, 36 or 37, shall not be liable to a fine under this Section.
11.Since, the Tehsildar has already passed an order imposing fine on the petitioners, therefore, the rigor of the proviso added to the Sub Section (1) of the Section 38 of the J&K Land Revenue Act, shall apply to the instant case in all the fours. The petitioners cannot be prosecuted under the Criminal Law for the 561_A No. 67/2015 Page 6 of 7 same Act, for which they have already been punished, as a corollary to which, the registration of the FIR bearing No. 19/2015, against the petitioners is an abuse of the process of law and, requires to be quashed. The respondent No. 2, SHO Police Station Chari-Shareef, District Budgam, has misdirected himself while registering a case against the petitioners under Section 436-A RPC. The petitioners cannot be vexed twice.
12. Viewed in the context of what has been said and done above, the petition of the petitioners is allowed, as a consequence of which, the impugned FIR bearing No. 19 of 2015, registered against the petitioners for the commission of an offence punishable under Section 436-A RPC, at Police Station, Chari-Shareef, is quashed alongwith all the proceedings emanating therefrom.
(M. K. Hanjura) Judge Srinagar 30.03.2018 "Manzoor"
561_A No. 67/2015 Page 7 of 7