Jammu & Kashmir High Court - Srinagar Bench
Khalil Ullah vs State Of J&K; And Others on 7 February, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 1544/2017
MP No. 01/2018
Date of Order:07.02.2018
Khalil Ullah
Vs.
State of J&K and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr A. H. Naik, Sr. Advocate with Mr. Zia, Advocate
For respondent(s): Mr B. A. Dar, Sr. AAG.
Mr ZaffarAhmad Shah, Sr. Advocate with Mr A. Hanan, Advocate
Mr M. Y. Bhat, Advocate
Mr Pranav Kohli, Advocate
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The facts as these emerge from the study of the petition of the petitioner
are that the Jammu and Kashmir Government has been inviting and
alluring the people from and outside the State of J&K to establish the
industrial Units in the State of Jammu and Kashmir and to achieve this
object, the State hasfrom time to time provided various incentives to these
Units. The petitioner in tune and in line with this phenomenon applied for
and was registered as a Katha Manufacturing Unit in the State under the
name and style of "M/s Jammu Industry". The State of J&K, issued SRO-
111 dated 31.03.2016 for the disposal and utilization of Khair trees
standing on the State and the private lands and this SRO has the effect of
meddling into the directions of the Hon‟ble Supreme Court passed in a
Public Interest Litigation dealing with the wood based industry which
included the Khair wood also. In the Public Interest Litigation aforesaid,
the Supreme Court directed that the State shall constitute a Committee to
OWP No. 1544/2017 Page 1 of 28
take a decision for the grant of license/permission to wood based industries
on the basis of the availability of the raw material.
2. The petitioner is also aggrieved of the Minutes of the Meeting held by the
State Level Committee on 17.07.2017, whereby it has been resolved that
the installed capacity of khair manufacturing units registered in the State is
only 10,000 Cum while as the actual availability is 20,970 Cum. It is
submitted that the SLC (State Level Committee) has wrongly by
misleading themselves stated that the installed capacity of Khair
manufacturing units registered in the State is only 10,000 Cum. The actual
availability is 20,970 Cum and the logic behind making this statement is to
give vent to the nefarious designs of the concerned officers to pave way for
allowing the export of Khair wood/timber, which if allowed, will be
violative of the directions of the Hon‟ble Supreme Court as also the order
issued by the Ministry of Forests, Environment and Climate Change. On
the succinct expose of facts detailed above the petitioner has craved the
indulgence of this Court in granting him the following reliefs:
(i) "By issuance of Writ of Certiorari, Meeting of the State Level
Committee held on 11.07.2017 issued by respondent No. 3, to the
extent it shows the capacity of local Katha Units at 10,000 Cum
only may be quashed; (Annexure P-4)
(ii) Writ of Mandamus commanding the respondents not to allow the
export of khair wood/timber from the J&K State to outside State.
(iii) Writ of Mandamus, commanding the respondents to allow the local
Katha Units to utilize Khair wood and after meeting the
requirement of the local industry including the petitioner‟s Unit.
(iv) Writ of Mandamus, commanding the respondents to allow export of
khair wood, which becomes available after meeting the
requirements of local Katha Units.
(v) Also any other appropriate writ, order or direction/relief, which
will advance the ends of justice in the present case, may be passed
in favour of the petitioners against the Respondents with costs".
The intervener has also submitted and sustained the pleadings of the
petitioners.
OWP No. 1544/2017 Page 2 of 28
3. In their reply, the answering respondent-Chief Conservator of Forests has
submitted that the J&K Forest Department is not providing any incentives
for establishing Katha Manufacturing Units in Jammu province which are
wood based industries in terms of SRO 103 of 2012. It is further pleaded
that the Hon‟ble Supreme Court vide order dated 12.12.1996 imposed a
ban on the felling of the trees in the Forests of J&K and also for exporting
of timber except DGS supply through State Forest Corporation. It is
pertinent to mention here that the Hon‟ble Supreme Court vide order dated
29.0.1998 imposed a ban on felling of Khair trees form the private
lands/non-forestry land as well in the State of J&K. The Hon‟ble Supreme
Court modified its earlier order vide order dated 16.09.2013 by which the
felling of khair trees on the private lands/non-forestry lands has been
allowed subject to the condition stipulated in the recommendation of the
Central Empowered Committee. Accordingly Rules for management of
khair trees on private lands and non-forestry land have been framed. These
have been duly vetted by the Central Empowered Committee and approved
by the Hon‟ble Supreme Court. The said rules were notified by the State of
J&K through Revenue Department vide SRO-111 of 2016. Since the Katha
Manufacturing units fall within the definition of the wood based industry,
therefore, SRO 103 of 2012 applies to them. In order to have the checks
and balances all wood based units falling under primary as well as
secondary category are to be registered with the Forest Department for the
issuance of the licence only. There is no promise made by the Forest
Department or by the Government of J&K to the petitioner or any other
wood based industry that the raw materials (khair wood) will be supplied
to the petitioner or any other such unit holders by the Government or by
any other Government Agency. However, as per the survey conducted by
the Himalayan Forest Research Institute Shimla 20,900 cubic meters of
khairwood form private lands and non-Forestry lands in the State of J&K
OWP No. 1544/2017 Page 3 of 28
are available annually and the management of felling has been made
accordingly as per SRO 111 of 2016. It is further pleaded that SRO-194
dated 03.08.1995 has been superseded vide SRO-111 of 2016 issued as per
the directions of the Central Empowered Committee and the Hon‟ble
Supreme Court of India. It is further pleaded that the assessment of khair
wood on the private land was made in 1994-95. Accordingly SRO-194 of
1995 was issued for management and felling of the khair trees from the
private lands. The said survey report was placed before the Hon‟ble
Supreme Court of India as well as the Central Empowered Committee. The
report was discarded and the Central Empowered Committee directed the
State of J&K to conduct fresh survey of the availability of the khair wood
on private lands/non-forestry lands. The survey has been conducted by an
independent agency called "Himalayan Forest Research Institute" in the
year 2012. The Said survey report was conducted by the said agency using
modern technology and error-less assessment of the availability of khair
wood on private and non-forestry land was prepared and the report was
placed before the Central Empowered Committee and the Hon‟ble
Supreme Court accordingly. Therefore, the assessment made in the year
1995 does not hold good as of now.
4. It is further pleaded that as per the record only three Kathua Manufacturing
Units have been given license including the petitioner‟s Unit by the Forest
Department under SRO 103 of 2012 and a No Objection Certificate has
been issued in favour of another Unit by the State Level Committee on
11.07.2017. It is further pleaded that the capacity of the Units is as per the
motor horse power installed in the Unit. The total capacity of the existing
three Units does not exceed 10000 cubic meters annually so far. However,
it is added if the Unit of the petitioner is having more capacity he may
produce the documentary proof before the concerned Conservator of
Forests for this purpose.
OWP No. 1544/2017 Page 4 of 28
5. It is further pleaded that the answering respondents are acting as per the
SRO-111 of 2016 and therefore, there is no violation of the orders of the
Hon‟ble Supreme Court. The respondents are taking action pursuant to
rules framed and issued under the guidance of Central Empowered
Committee and the Hon‟ble Supreme Court of India. In the end, it is
pleaded that none of the rights of the petitioner have been infringed or
violated by the answering respondent.
6. The Respondent No. 9 has in his reply contended that he is aggrieved by
the order dated 11.10. 2017 of this Court in as much as the Rules and the
Division Bench judgment of this Court direct that khair wood/timber can
be transported outside the State of Jammu and Kashmir. It is further
pleaded that he had previously filed a writ petition in the Jammu Wing of
the Hon‟ble Court bearing No. 683/2017 in which the Court has passed the
directions against the Official respondents to allow the respondent No. 9 to
carry Khair wood/timber outside the State of Jammu and Kashmir.
7. It is further pleaded that in terms of the Rules sanctioned vide SRO-111 the
reliefs prayed for by the petitioner cannot be granted him in terms of the
Rules vide SRO-111. Although it was within the knowledge of the writ
petitioner that SRO 111, Judgment of the Division Bench and also the
order passed by the Jammu Wing of the Court permit the answering
respondent to carry khair wood/timber outside the State of Jammu and
Kashmir, yet in his petition the writ petitioner has not made any mention of
the said facts. In pursuance to the orders of the Writ Court at Jammu and
Kashmir the respondent was allowed by the answering respondents to carry
one truck load of khair wood outside the State after completing all the
formalities and obtaining requisite permission on 09.112017 under Form-
25 issued by the Jammu and Kashmir Forest Department.
8. The wharf and woof under the shade of which the entire controversy raised
herein this matter resolves is: firstly, whether the export of Khair
OWP No. 1544/2017 Page 5 of 28
wood/timber form the State of J&K to the outside States is permissible;
secondly, whether the respondents can be commanded to allow the export
of Khair wood, only to the extent to which it becomes available after
meeting the requirements of local Katha Units; and, thirdly, whether in the
minutes of the meeting held by the State Level Committee on 11.07.2017,
the capacity/requirement of the local Katha Units has not been spelt out
correctly.
9. The contention of the learned counsel for the respondent No.9 is that an
identical matter involving the same questions of law and facts as have been
agitated in this petition has been decided by a learned Single Bench of this
High Court in OWP No.529/2016 titled "M/s J.K Kathua and others v.
State and others". He has further contended that the said judgment was
assailed in an appeal in LPAOW No. 63/2016 titled "M/s J. K. Katha Th.
its Prop. And Others", before the Division Bench of this High Court and
the Division Bench has dismissed the same. He has also contended that a
Special Leave Petition has been filed before the Apex Court of the country
which is pending adjudication and no notice has been issued in it yet.
Learned counsel has further argued that a similar matter has also been
resolved/determined by the learned Single Bench of this High Court in the
case bearing OWP No.686/2017 titled "Gopal Dass and others V. Govt. of
Jammu and Kashmir through Commissioner Secretary Forest
Department. Per contra, learned counsel for the petitioner and the learned
counsel for the intervener have argued that these judgments do not decide
the matter and issues raised here in the petition. Taking into consideration
the arguments advanced by the learned counsel for the respondent, it
requires to be seen and scanned at first as to what has been held in the
judgments delivered by the two Coordinate Benches and by the Division
Bench of this High Court, and what is the effect thereof on this case.
OWP No. 1544/2017 Page 6 of 28
In the case titled "M/s J.K Kathua V. State of J&K and ors.", decided by
the learned Single Bench of this Court by order dated 02.12.2016, it has been
held as under:-
1. "Petitioners call in question the vires of Sub Rules 2 and
4 of Rule 8 of the Jammu and Kashmir Non-Forest Land
Khair Trees „Acacia Catechu‟ (Management Plan) Rules,
2016 (hereinafter called as Rule of 2016 for short).
2. It appears from the averments made in the writ petition
that the 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
3. The challenge to the impugned Rule has been made, inter
alia, on the ground that the 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.
GodavarmanThirumulkpadv.Union of India and
others", 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
OWP No. 1544/2017 Page 7 of 28
based industries. On the basis of the aforesaid position,
challenge has been thrown to Rule aforesaid.
4. 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
171/96 titled "Environment Awareness Forum v. State
of Jammu and Kashmir and others". 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
OWP No. 1544/2017 Page 8 of 28
within the State of Jammu and Kashmir, particularly,
Khair Wood Based Industrial Units.
5. Heard learned counsel for the parties and considered the
respective submissions.
6. 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.
7. 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.
8. 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
OWP No. 1544/2017 Page 9 of 28
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 judgement
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, was
issued.
9. 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
OWP No. 1544/2017 Page 10 of 28
sustainable in law. Writ petition is therefore
misconceived and, deserves to be dismissed. Ordered
accordingly. No order as to costs."
Against the judgment aforesaid an appeal bearing LPAOW
No.63/2016 came to be filed before the Division Bench of this High Court
and the same was determined by order dated 11.04.2017, that reads as
under:-
1. "The present appeal has been preferred against the
judgment dated 02.12.2016. It appears that the
petitioners had challenged Rule 8(2) and (4) of the
Jammu and Kashmir on-Forest Land Khair Trees „Acacia
Catechu‟ (Management Plan) Rules, 2016 (herein-after
referred to as „the 2016 Rules‟). At the outset, we asked
the learned counsel for the appellants as to whether the
challenge to the aforesaid provisions was on the ground
that the same were ultra vires the provisions of the
Jammu and Kashmir Land Revenue Act, 1996 (2093 A.D)
(herein-after referred to as the said Act).
2. We also asked the learned counsel for the appellants to
indicate as to whether the challenge to the said
provisions was on the ground that it was ultra vires the
Constitution of India. The answer given by the learned
counsel for the appellants to both these queries was in the
negative. He, however, submitted that the said provisions
were being challenged on the plea of Promissory
Estoppel.
3. Ongoing through the impugned judgment we find that the
plea of Promissory Estoppel has only been referred to in
passing. The learned counsel for the appellants submitted
that the plea was not taken substantially before the
learned Single Judge but the plea had been taken.
4. In order to understand the plea of the appellants, it is
pertinent to note the provisions of Rule 8 of the 2016
Rules, which reads as under:
8. Marking felling conversion, transportation and
disposal.
OWP No. 1544/2017 Page 11 of 28
(1) After the accord of marking and felling
permission, the marking shall be conducted by the
Block Forest Officer concerned. The felling,
conversion and transportation shall be done under
the Incharge of the area and shall submit an outturn
report to the Range Officer. After receipt of the
outturn report form Range Officer, the Divisional
Forest Officer/Empowered Officer, as the case may
be, may accord transportation permission.
(2) The owner shall be free to sell their khair wood
to anybody, for utilization within or outside the State
on the price acceptable to him.
(3) The registered co-operative
societies/institutions formed by owners and
registered under the Societies Registration Act VI
1998 Samvat (1941 AD) shall be eligible to deal
with sale/purchase/disposal of khair wood.
(4) The transportation permission may be issued
within the State b the Divisional Forest Officer
concerned and outside the State by the Empowered
Officer, for a specified purpose under these rules in
favour of the 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
kahir trees.
(5) The fee of Rs. 20/- per quintal within State and
Rs. 120/- per quintal for export outside State or such
sum as may be fixed by the Government from time to
time, shall be payable for transportation permission.
(6) Marking, felling, conversion, transportation
and disposal of the kahir wood from the non-forest
land excluding private (Milkiyat) land shall be done
by the Divisional Forest Officer after receiving
approval from the Empowered Officer.
(7) The Divisional Forest Officer shall submit a
monthly return to Empowered Officer with regard to
the felling, conversion, transportation in Form -E
OWP No. 1544/2017 Page 12 of 28
and a consolidated report at the end of financial
year in Form-„F‟."
5. Sub-Rule (2) of Rule 8 stipulates that the owner shall be
free to sell Khair wood to anybody, for utilization within
„or outside the State on the price acceptable to him
available within the State would be only for the purposes
of Katha Manufacturers within the State and that the
same could not be transported outside the State. NO case
for promissory estoppel, therefore, is made out.
6. Before concluding, we may point out that the learned
Advocate General attracted our attention to an order
dated 02.12.1996 passed by the Supreme Court in T. N.
GodavarmanThirumpulpad v. Union of Indian, WP © No.
202 of 1995. In that order and with particular reference
to the State of Jammu and Kashmir, it was directed that
there would be no felling of trees permitted in any forest,
public or private. A limited permission was granted,
however, for felling of trees in forests or otherwise for
execution of projects, but under strict compliance with
the Jammu and Kashmir Forests Conservation Act, 1990
and other applicable laws. The disposal of the said trees
was also to be done exclusively by the State Forests
Corporation and no private agency was permitted to deal
with the same. Any timber obtained from such trees was
to be utilized within the State and preferably to meet the
timber and fuel wood requirements of the local people,
the Government and other local institutions. The
movement of trees or timber from the State was also
suspended except for the use of DGS and D. Railways
and Defence.
7. This order was, however, subsequently modified on
16.09.2013. By virtue of the said order dated 16.9.2013,
the Supreme Court permitted the felling of khair trees in
the State of Jammu and Kashmir, subject to the
conditions stipulated in Paragraph 45of the report of the
Centrally Empowered Committee which were extracted in
the said order itself. Condition No. vii indicated that the
marking of trees for felling, the permission for the felling
OWP No. 1544/2017 Page 13 of 28
of trees, the inspection of felled trees and the issuance of
transit passes would be strictly regarded as per the
notified rules, the Management Plan and Form „A‟. The
reference to the notified rules was the draft of 2012,
which was to be notified by the State of Jammu and
Kashmir. This ultimately came to be the rules of 2016.
8. It, therefore, appears that there is no impediment on the
felling of Khair Trees or the transportation of Khair
Trees within and outside the State of Jammu and
Kashmir, except for complying with the strict conditions
laid down in the 2016 Rules. As along as the conditions
therein are satisfied. Khair wood can be transported
outside the State of Jammu and Kashmir.
9. Consequently, there is no merit in the appeal. However,
such felling and transportation would, as always, be
subject to any directions given by the Supreme Court in
the aforesaid matter.
10. The appeal is dismissed."
In yet another case titled "Gopal Dass and others Vs. Govt. of Jammu and
Kashmir through Commissioner/Secretary Forest Department (OWP
No.868/2017), by an order dated 03.06.2017 passed by a coordinate Bench of
this Court, it has been held as under:-
"I have considered the submissions made by learned
counsel for the parties, Rule 8(2) of the Rules provides
that owners of the khair wood shall be free to sell their
khair wood to anybody within and outside the State on
the price acceptable to them. It is pertinent to mention
here that this Court in OWP No. 698/2017 had granted
the permission to the petitioner in the aforesaid case to
transport the wood under the supervision of the Officer
of the Forest Department, as the wood was already cut
and the Officers of the Forest Department were
directed to prepare the inventory of the khair wood.
OWP No. 1544/2017 Page 14 of 28
For the aforesaid reasons and in view of Rule 8(2) of
the Rules, it is directed that the respondents shall
permit the petitioners to transport the khair wood,
which has already been cut. The aforesaid
transportation shall take place under the supervision of
the Officers of the Forest Department and the Officers
of the Forest Department shall prepare an inventory of
the khiar wood, which shall be transported by the
petitioners. However, petitioner shall not use the khair
wood transported by them without seeking leave of this
Court".
10. Learned senior counsel representing the respondent No.9 states, and rightly
so, that the issue, raised in the above petitions and the Letters Patent
Appeal, related to the determination of the applicability of the Sub Rule(2)
of Rule 8 of the 2016 Rules and in all these petitions this court upheld the
view that transportation of khair wood outside the State is permissible
under law and the decisions in these petitions are binding on this court and
the parties to the petition. In furtherance of this submission, the learned
senior counsel also strenuously avows that the learned Single Bench and
the learned Division Bench, while dealing with the controversy that has
been again scooped up by the petitioner herein, have declared the law as
regards the transportation of khair wood and it is no more res integra for
the petitioners to come before this Court on same issue that has already
been dealt with and put at rest by both the learned Single Bench as well as
by the learned Division Bench of this Court.
11. From the above discussion, the controversy constricts to the application of
the judgment(s) passed by the learned Single Bench and the Division
Bench, and the legal position laid down therefrom having a binding impact
on the petition of the petitioner. To better understand so, it would be
advantageous to have an exploration of the judicial pronouncements qua
the application and bindingness of the settled law as a result of judicial
pronouncement of the Court.
OWP No. 1544/2017 Page 15 of 28
12. Before adverting to the controversy involved in the present case, it would
be appropriate to say that India is governed by a judicial system identified
by a hierarchy of courts, where the doctrine of binding precedent is a
cardinal feature of its jurisprudence. It used to be disputed that Judges
make law. Today, it is no longer a matter of doubt that a substantial
volume of the law governing the lives of citizens and regulating the
functions of the State flows from the decisions of the superior courts.
"There was a time:' observed Lord Reid, "when it was thought almost
indecent to suggest that Judges make law--They only declare it ........ But
we do not believe in fairy tales anymore" The Judge as law Maker" p. 22."
In countries, such as the United Kingdom, where Parliament as the
legislative organ is supreme and stands at the apex of the constitutional
structure of the State, the role played by judicial law making is limited. In
the first place the function of the courts is restricted to the interpretation of
laws made by the Parliament, and the courts have no power to question the
validity of Parliamentary statutes, the Diceyan dictum holding true that the
British Parliament is paramount and all powerful. In the second place, the
law enunciated in every decision of the courts in England can be
superseded by an Act of Parliament. As Cockburn CJ. observed in Exp.
Canon Selwyn, [1872] 36 JP 54:
"There is no judicial body in the country by which the
validity of an Act of Parliament could be questioned. An
act of the Legislature is superior in authority to any Court
of Law".
13. And Ungoed Thomas J., in Cheney v. Conn, [1968] 1 All ER 779 referred
to a Parliamentary statute as "the highest form of law .....which prevails
over every other form, of law." The position is substantially different under
a written Constitution, such as the one which governs us. The Constitution
of India, which represents the Supreme Law of the land, envisages three
distinct organs of the State, each with its own distinctive functions, each a
OWP No. 1544/2017 Page 16 of 28
pillar of the State. Broadly, while Parliament and the State Legislature in
India enact the law and the Executive government implements it, the
judiciary sits in judgment not only on the implementation of the law by the
Executive but also on the validity of the Legislation sought to be
implemented. One of the functions of the superior judiciary in India is to
examine the competence and validity of the legislation, both in point of the
legislative competence as well as its consistency with the Fundamental
Rights. In this regard, the courts in India possess a power not known to the
English Courts. Where a statute is declared invalid in India it cannot be
reinstated unless constitutional sanction is obtained, therefore, by a
constitutional amendment or an appropriately modified version of the
statute is enacted which accords with constitutional prescription. The range
of judicial review recognized in the superior judiciary of India is perhaps
the widest and the most extensive known to the world of law. The power
extends to examining the validity of even an amendment to the
Constitution, for now it has been repeatedly held that no constitutional
amendment can be sustained which violates the basic structure of the
Constitution. [See: His Holiness KesavanandaBharatiSripadagalavaru v.
State of Kerala, [1973] Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri
Raj Narain [1976] 2 SCR 347; Minerva Mills Ltd. and others v. Union of
India and others [1980] 2 SCC 591 and S.P. Sampath Kumar etc. v.
Union of India and Ors., [1987] 1 SCR 435. With this impressive
expanse of judicial power, it is only right that the superior courts in India
should be conscious of the enormous responsibility which rests on them.
This is specially true of the Supreme Court, for as the highest Court in the
entire judicial system the law declared it is, by Article 141 of the
Constitution, binding on all courts within the territory of India.
14. Taking note of the hierarchical character of the judicial system in India, it
is of paramount importance that the law declared by the Courts should be
OWP No. 1544/2017 Page 17 of 28
certain, clear and consistent. It is commonly known that most decisions of
the courts are of significance not merely because they constitute an
adjudication on the rights of the parties and resolve the dispute between
them, but also because in doing so they embody a declaration of law
operating as a binding principle in future cases. In this latter aspect lies
their particular value in developing the jurisprudence of the law. The
doctrine of binding precedent has the merit of promoting a certainty and
consistency in judicial decisions, and enables an organic development of
the law, besides providing assurance to the individual as to the
consequence of transaction forming part of his daily affairs and, therefore,
the need is for a clear and consistent enunciation of legal principle in the
decisions of a Court. But like all principles evolved by man for the
regulation of the social order, the doctrine of binding precedent is
circumscribed in its governance by perceptible limitations, the limitations
arising by reference to the need for readjustment in a changing society, a
readjustment of legal norms demanded by a changed social context. This
need for adapting the law to new urges in society brings home the truth of
the Holmesian aphorism that "the life of the law has not been logic it has
been experience". Oliver Wendell Holmes, "The Common Law" p. 5 and
again when he declared in another study that Oliver Wendell Holmes,
"Common Carriers and the Common Law", (1943) 9 Curr. L.T. 387, 388,
"the law is forever adopting new principles from life at one end," and
"sloughing off" old ones at the other. Explaining the conceptual import of
what Holmes had said, Julius Stone elaborated that it is by the introduction
of new extra-legal propositions emerging from experience to serve as
premises, or by experience-guided choice between competing legal
propositions, rather than by the operation of logic upon existing legal
propositions, that the growth of law tends to be determined. Julius Stone,
"Legal Systems & Lawyers Reasoning", pp. 58-59.
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15. In Lt. Col. Khajoor Singh v. The Union of India & another [1961] 2 SCR
828, the majority of the Supreme Court emphasised that the court, should
not depart from an interpretation given in an earlier judgment of the court
unless there was a fair amount of unanimity that the earlier decision was
manifestly wrong. In Keshav Mills Company v. Commissioner of Income
Tax [1965] 2 SCR 908, the Supreme Court observed that a revision of its
earlier decision would be justified if there were the compelling and
substantial reasons to do so. In Sajjan Singh v. State of Rajasthan [1965]
1 SCR 933, the Supreme Court laid down the test: „Is it absolutely
necessary and essential that the question already decided should be
reopened?', and went on to observe: 'the answer to this question would
depend on the nature of the infirmity alleged in the earlier decision, its
impact on public good and the validity and compelling character of the
considerations urged in support of the contrary view.' There can be no
doubt, as was observed in GirdhariLal Gupta v. D.H.Mill [1971] 3 SCR
748, that where an earlier relevant statutory provision has not been brought
to the notice of the court, the decision may be reviewed, or as in Phillani
Investment Corporation Ltd v. I.T.O. 'A' Ward, Calcutta & another,
[1972] 2 SCR 502, if a vital point was not considered. A more
compendious examination of the problem was undertaken in Keshav Mills
Company case (supra) where the Court pointed out:
"It is not possible or desirable, and in any case it would be
inexpedient to lay down any principles which should govern
the approach of the Court in dealing with the question of
reviewing and revising its earlier decisions. It would always
depend upon several relevant considerations:-- What is the
nature of the infirmity or error on which a plea for a review
and revision of the earlier view is based? On the earlier
occasion, did some patent aspects of the question remain
unnoticed, or was the attention of the Court not drawn to any
relevant and material statutory provision, or was any
previous decision of this Court bearing on the point not
noticed? Is the court hearing such plea fairly unanimous that
OWP No. 1544/2017 Page 19 of 28
there is such an error in the earlier view? What would be the
impact of the error on the general administration of law or on
public good? Has the earlier decision been followed on
subsequent occasions either by this Court or by the High
Courts? And, would the reversal of the earlier decision lead
to public inconvenience, hardship or mischief? These and
other relevant considerations must be carefully borne in mind
whenever this Court is called upon to exercise its jurisdiction
to review and revise its earlier decisions. These
considerations become still more significant when the earlier
decision happens to be a unanimous decision of the Bench of
five learned Judges of this Court."
16. Much importance has been laid on observing the finality of decisions
rendered by the Constitution Bench of the Supreme Court, and in Ganga
Sugar Company v. State of Uttar Pradesh [1980] 1 SCR 769, the Court
held against the finality only where the subject was 'of such fundamental
importance to national life or the reasoning is so plainly erroneous in the
light of later thought that it is wiser to be ultimately right rather than to be
consistently wrong'. It is not necessary to refer to all the cases on the point.
The broad guidelines are easily deducible from what has gone before. The
possibility of further defining these guiding principles can be envisaged
with further juridical experience, and when common jurisprudential values
linking different national systems of law may make a consensual pattern
possible. But that lies in the future. There was some debate on the question
whether a Division Bench of Judges is obliged to follow the law laid down
by a Division Bench of a larger number of Judges. Doubt has arisen on the
point because of certain observations made by O. Chinnappa Reddy, J. in
Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra AIR 1985
SC 23. Earlier, a Division Bench of two Judges, of whom he was one, had
expressed the view in T.V. Vatheeswaran v. The State of Tamil Nadu,
AIR 1983 SC 361, that delay exceeding two years in the execution of a
sentence of death should be considered sufficient to entitle a person under
sentence of death to invoke Article 21of the Constitution and demand the
OWP No. 1544/2017 Page 20 of 28
quashing of the sentence of death. This would be so, he observed, even if
the delay in the execution was occasioned by the time necessary for filing
an appeal or for considering the reprieve of the accused or some other
cause for which the accused himself may be responsible. This view was
found unacceptable by a Bench of three Judges in Sher Singh & others v.
State of Punjab, AIR 1983 SC 465, where the learned Judges observed
that no hard and fast rule could be laid down in the matter. In direct
disagreement with the view in T.V. Vatheeswaran case (supra), the learned
Judges said that account had to be taken of the time occupied by
proceedings in the High Court and in the Supreme Court and before the
executive authorities, and it was relevant to consider whether the delay was
attributable to the conduct of the accused. As a member of another Bench
of two Judges, in Javed Ahmed Abdul Hamid Pawala, case (supra), O.
Chinnappa Reddy, J. questioned the validity of the observations made in
Sher Singh case (supra) and went on to note, without expressing any
concluded opinion on the point, that it was a serious question "whether a
Division Bench of three Judges could purport to overrule the judgment of a
Division Bench of two Judges merely because there is larger than two. The
Court sits in Divisions of two and three Judges for the sake of convenience
and it may be inappropriate for a Division Bench of three Judges to
purport to overrule the decision of a Division Bench of two Judges.
[VideYoung v. Bristol Aeroplane Co. Ltd., [1944] 2 All ER 293]. It may
be otherwise where a Full Bench or a Constitution Bench does so." It is
pertinent to record here that because of the doubt cast on the validity of the
opinion in Sher Singh case (supra), the question of the effect of delay on
the execution of a death sentence was referred to a Division Bench of the
Five Judges, and in Triveniben v. State of Gujarat AIR 1989 SC 142, the
Constitution Bench overruled T.V. Vatheeswaran case (supra). What then
should be the position in regard to the effect of the law pronounced by a
OWP No. 1544/2017 Page 21 of 28
Division Bench in relation to a case raising the same point subsequently
before a Division Bench of a smaller number of Judges? There is no
constitutional or statutory prescription in the matter, and the point is
governed entirely by the practice in India of the Courts sanctified by
repeated affirmation over a century of time. It cannot be doubted that in
order to promote consistency and certainty in the law laid down by a
superior Court, the ideal condition would be that the entire Court should sit
in all cases to decide questions of law, and for that reason the Supreme
Court of the United States does so. But having regard to the volume of
work demanding the attention of the Court, it has been found necessary in
India as a general rule of practice and convenience that the Court should sit
in Divisions, each Division being constituted of Judges whose number may
be determined by the exigencies of judicial need, by the nature of the case
including any statutory mandate relative thereto, and by such other
considerations which the Chief Justice, in whom such authority devolves
by convention, may find most appropriate. It is in order to guard against
the possibility of inconsistent decisions on points of law by different
Division Benches that the rule has been evolved, in order to promote
consistency and certainty in the development of the law and its
contemporary status, that the statement of the law by a Division Bench is
considered binding on a Division Bench of the same or lesser number of
Judges. This principle has been followed in India by several generations of
Judges. I may refer to a few of the cases on the point. In John Martin v.
The State of West Bengal [1975] 3 SCR 211, a Division Bench of the
three Judges found it right to follow the law declared in HaradhanSaha v.
State of West Bengal [1975] 1 SCR 778 decided by a Division Bench of
the Five Judges, in preference to BhutNath Mate v. State of West Bengal
AIR 1974 SC 806, decided by a Division Bench of two Judges. Again in
Smt. Indira Nehru Gandhi v. Shri Raj Narain [1976] 2 SCR 347, Beg, J.
OWP No. 1544/2017 Page 22 of 28
held that the Constitution Bench of the Five Judges was bound by the Constitution Bench of the Thirteen Judges. In Ganapati SitaramBalvalkar& another v. WamanShripad Mage (Since Dead) through LRs [1981] 4 SCC 143, the Supreme Court expressly stated that the view taken on a point of law by a Division Bench of the Four Judges of the Supreme Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. RadheLal [1975] 1 SCR 127, the Supreme Court specifically observed that where the view expressed by two different Division Benches of the Supreme Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. The Supreme Court also laid down in AcharayaMaharajshriNarandraprasadjiAnandprasadjiMaharaj etc. etc. v. The State of Gujarat &Ors., [1975] 2 SCR 317, that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or other-wise of the views of the other. The principle was reaffirmed in Union of India & others v. Godfrey Philips India Ltd [1985] 4 SCC 369, which noted that a Division Bench of two Judges of the Supreme Court in Jit Ram v. State of Haryana [1980] 3 SCR 689 had differed from the view taken by an earlier Division Bench of two Judges in MotilalPadampat Sugar Mills v. State of U.P. [1979] 2 SCR 641 on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well-accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.
17. From the above verbose discussion, a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a OWP No. 1544/2017 Page 23 of 28 smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. Be that as it may, the contention of Mr Naik and Mr. Bhat, the learned counsel appearing on behalf of the petitioner and the intervener that the judgment of the Division is not binding on this count is a specious agreement. It is well settled law that generally legal positions laid down by the Court would be binding on all concerned even though some of them have not been made parties nor were served nor any notice of such proceedings given. The subject-matter of instant writ petition has been dealt with and put at rest not only by the learned Single Judge but also by the learned Division Bench in LPAOW No.63/2016.
18. One more contention of Mr Naik and Mr. Bhat is that the judgment(s) and order(s) rendered by both the learned Single Judge and the Division Bench are per incuriam and as also sub silentio. This submission requires survey of the expression "per incuriam". Per incuriam, according to the Black‟s Law Dictionary (Fourth Edition, 1891) means through inadvertence. The word „incuria‟ literally means „carelessness‟, as observed by the House of Lords in Young v. Bristol Aeroplane Company Limited (supra). In practice per incuriam appears to mean per ignoratium. The purport of the doctrine of per incuriam is that, a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute, or of a rule having the force of a statute. Lord Godard, C.J., in Huddersfield Police Authority v. Watson, 27 (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court‟s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. „Per incuriam‟ means „through want of care‟; a decision of the court which is mistaken. A decision of the court is not a binding precedent if given per incuriam, that OWP No. 1544/2017 Page 24 of 28 is, without the Court‟s attention having been drawn to the relevant authorities or statutes. The „per incuriam‟ rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. An important caveat that is required to be borne in mind at all times is that the non- reference of earlier decisions in the judgment does not indicate non- consideration of those cases in the judgment. A decision/judgment can be per incuriam, when any provision in a statute, rule or regulation, was not brought to the notice of the court. A decision/judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench; or if the decision of a High Court is not in consonance with the views of the Supreme Court. Lord It is a settled rule that if a decision has been given per incuriam the court can ignore it. In the case of Buta Singh v. Union of India (1995) 5 SCC 284, it was held that, when a two-judges bench without noticing or ignoring the binding decision of a three-judges bench renders a decision, then such a decision is per incuriam. Similarly, in the case of K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395, it was held that, when a decision is rendered by the High Court without having regard to the relevant line of decisions rendered by the Supreme Court, then such a decision of the High Court is per incuriam. In the case of Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (Chandigarh) (1990) 3 SCC 682, it was held that the problem of judgment per incuriam when it actually arises should present no difficulty as the Supreme Court of India can lay down the law afresh, if two or more of its earlier judgments cannot stand together. It is important to note that the non-consideration of an irrelevant provision cannot make the ratio of the decision per incuriam. In the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd, (2001) 6 SCC 356, it was held that unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of OWP No. 1544/2017 Page 25 of 28 judgment per incuriam; it has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam. Thus, an order delivered without argument, without reference to the relevant provisions of the Act and without any citation of authority is per incuriam. In the case of Jai Singh v. M.C.D. (2010) 9 SCC 385, it was held that, judicial discipline and propriety demands that, there should be consistency in the views as regards the decisions rendered by co-equal benches on the same issue; however, subsequent bench is to follow the decision rendered by the earlier co- ordinate bench.
19. It is important to take note of the ratio laid down in the case of K.G. Derasari v. Union of India (2001) 10 SCC 496. In this case the Supreme Court categorically observed that if the tribunal has not looked into previous decision of the Supreme Court which is the law of the land and by which it was bound, the remedy available to the aggrieved person was to file an application for review. In the case of Chandra Prakash v. State of U.P. AIR 2002 SC 1652, it was held that, in case a two-judge bench finds fault with the decision rendered by a three-judge bench, then, in that case, the two-judge bench must restrain itself from referring the matter to the Constitution Bench, as judicial discipline and propriety as also the doctrine of binding precedent demands that a two-judge bench must follow the decision given by a three-judge bench. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co- equal strength. This aspect is further espoused by the Supreme Court in the case of "Ram Vijay Singh and others v. State of U.P and others" in Civil Appeal Nos. 367, 355, 354, 356, 357, 358 and 366 of 2017 decided on 11.12.2017 where it has been commanded that respect for the view taken OWP No. 1544/2017 Page 26 of 28 by a Coordinate Bench is essential element of judicial discipline. A Judge might have a difference of opinion with another Judge, but that does not give him or her any right to ignore the contrary view. In the event of a difference of opinion, the procedure sanctified by time must be adhered to so that there is demonstrated respect for the Rule of Law.
20. From the above effusive survey, it is luculent that a judicial decorum and discipline is paramount and, therefore, a coordinate Bench has to respect the judgments and orders passed by another coordinate Bench and a pronouncement of law by a Division Bench of the Court is binding on a Division Bench of the same or a smaller number of Judges as well, and in result such decision is binding. The sequitur of the above discussion is that the writ petition is sans any merit.
21. Mr Shah, the learned senior counsel has stated, and correctly so, that the import and the extent of the judgment of the Division Bench supra is that there can be no impediment on the felling of khair trees or the transportation of khair trees within and outside the State of Jammu and Kashmir subject to the exception carved out in the judgment. Therefore, the questions raised by the petitioner in the petition, that are whether the export of khair wood from the State of Jammu and Kashmir to outside State is permissible and whether or not the respondents can be commanded to allow the export of khair wood, only to the extent to which it became available after meeting the requirements of local Katha Units having been considered by the Division Bench of this Court are binding on this Court.
22. As regards the third contention of the petitioner that in the minutes of the meeting held on 11.07.2017, the capacity/requirement of the local Katha Units has not been spelt out correctly, the State has given a lucid account of the events in which this capacity/requirement of the local Katha Units has been carved out whileas, there is no material on record on the basis of which the contention of the petitioner could be accepted.
OWP No. 1544/2017 Page 27 of 2823. In view of the proceeding analysis, the petition of the petitioner entails dismissal and the same is accordingly dismissed. There appears to be no clog in felling of khair trees or their transportation within and outside the State of Jammu and Kashmir which shall, however be, subject to any further future directions extended by the Supreme Court from time to time.
Srinagar (M. K. Hanjura)
07.02.2018 Judge
"Manzoor"
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