Khalil Ullah vs State of J&K and Others

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

take a decision for the grant of license/permission to wood based industries on the basis of the availability of the raw material.

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.

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 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.

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.

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.

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.

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.

The wharf and woof under the shade of which the entire controversy raised herein this matter resolves is: firstly, whether the export of Khair

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.

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.

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:-

""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).

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

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 based industries. On the basis of the

aforesaid position, challenge has been thrown to Rule aforesaid.

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 within the State of Jammu and Kashmir, particularly, Khair Wood Based Industrial Units.

Heard learned counsel for the parties and considered the respective submissions.

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.

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.

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 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.

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.

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:-

""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).

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.

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.

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:

Marking felling conversion, transportation and disposal.

(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 and a consolidated report at the end of financial year in Form-''F''.

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.

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.

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 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.

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.

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.

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. 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"".

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.

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.

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"".

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 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.

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 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.

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 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.

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 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 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. 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.

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

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.

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 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 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.

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 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.

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.

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.

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.

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.