Mani Ram And Ors vs State & Ors

On asking, Mr. Ajaz Lone, GA waives notice on behalf of respondent Nos.1 to 5.

Learned counsel for the petitioners has submitted that already similar petitions have been entertained by the Coordinate Benches of this Court and passed directions copies of which have been annexed with the petition.

The petitioners have stated that they are the farmers belonging to Village Kandiyar of Tehsil Katra District Reasi. Inaction on the part of the respondents in granting the permission to fell the Khair trees from the privately owned land in terms of SR0 111 of 2016 is projected to be the grievance. It is pleaded that they being entitled to same relief have filed the joint petition for the common cause against the respondents. Further points have been taken as:

a) That the petitioners belong to the Kandi belt of the State, where the nature of the land is un-irrigated, but as a solace to the farmers of the Kandi belt is blessed with the crop of Khair trees;

b) That the existence of the Khair trees in the fields of the farmers is in abundance as kandi belt and it is the most significant source of the livelihood of the farmers including the petitioners herein;

c) That the use of the khair trees in the medicines, in the nature of katha has proved to a substantial income for the growers;

d) That in the year 1996, The Hon'ble Apex Court of India in a Public Interest Litigation titled Environment Awareness forum vs/ State of J&K and S.Godaverman vs Union of India banned the felling, removal and the transportation of khair trees in the State of Jammu & Kashmir. Felling whereof was however regulated in terms of SR0 194 of 1995 as in terms of directions of the Hon'ble Apex Court in the above titled Public interest litigation, a Central Empowered Committee was constituted to address the issue of felling, removal and transportation of the khair trees in the State of Jammu & Kashmir;

e) That based on the feedback gathered directly from the farmers as well as keeping into consideration the survey of the availability of the Khair trees on the non forest land conducted by the State through The Himalayan Forest Research Institute, Shimla (HFRI) of The Indian Council of Forestry Research and Education in the Jammu region, the Central Empowered Committee made recommendations to the Hon'ble Apex Court directly recommending the felling, removal and transportation and marking of the khair trees;

f) That the central empowered committee have recommended the felling of 20,000/-cubic meter of khair trees in a year by adopting the scientific method, further the central empowered committee has recommended the state to come up with the rules regulating the felling, marking, removal and transportation of the khair trees from privately owned land. Further to come up with the management plan which regulates the assessment marking felling and transportation of the khair trees in terms of the Rules SR0 No.111 of 2016;

g) That the State of Jammu and Kashmir has framed the rules as well as the management plan and placed the same before the Central empowerment committee which stood approved by the committee and finally committee made the recommendation to the Apex Court for the modification of the both the orders dated 10-5-1996 in WP (C) No. 171 of 1996 and the order dated12-12-1996 in WP (C) 202 OF 1995 in terms whereof the complete ban was placed by the court on the felling, removal, marking, transportation of Khair wood trees;

h) That the Hon'ble Apex Court in terms of order dated 16.09.2013, accepted the recommendations in paragraph 45 of the report and modified the earlier order of ban on felling, marking, removal and transportation of Khair wood trees and allowed the marking, felling, removal, transportation of the khair wood trees from within and outside the state of Jammu and Kashmir; that the state of Jammu and Kashmir have notified the same rules as SRO 111 of 2016 and issued the management and outside of the state of Jammu and Kashmir;

i) That the ten years felling programme prepared by the Divisional Forest officer range Reasi on the basis of the approved management plan stands approved by the Chief Conservator of Forest on 10.09.2016;

j) That vide notification no. DIP/J-4903 dated 24.09.2016 the felling programme of Khair trees in Reasi Mahore, Nowshera and Rajouri Forest Division have been adopted and the owners of the khair trees were directed to apply for obtaining the felling permission for the felling of the Khair trees, in terms of sub section 1 of section 6 of SR0 111 dated 31.03.2016 to the concerned Divisional Forest Officer;

k) That the petitioner who belongs to Village Kandiyar Tehsil Katra District Reasi had also applied on the prescribe form B for the grant of felling permission required for felling of the khair trees from their privately owned land before the Divisional Forest Officer, Reasi;

l) That the application of the petitioners stands forwarded to the Tehsildar as well as Territorial range officer for Nishandehi/demarcation and enumeration of khair tress with reference to the relevant Revenue record;

m) That the title of the petitioners qua the Khair growing privately owned land as well as the enumeration of the khair trees standing on the private land of the petitioners has been effected and the concerned territorial range officer have also conducted the verification and enumeration of silvicultural value/availability of the Khair trees.

n) That the verification report complete in all respects in accordance with the rule stood submitted by the Tehsildar Katra to the divisional Forest Officer Reasi for the accord of permission of the felling trees vide no. 1036 NTP dated 19. 03. 2018;

o) That after obtaining the verification of the title and enumeration of the khair trees qua Village Kandiyar Tehsil Katra qua the khair trees on the privately owned the land in possession of the petitioners, the concerned Divisional Forest Officer, remained sitting over the files of the felling permission of the petitioners despite clear mandated of the law in terms of SR0 111 of 2016 rule 6 governing the grant of felling permissions, as such have failed to exercise the jurisdiction while discharging the statutory duty in terms of the SR0 111 of 2016.

p) That qua the felling permission of the khair trees of the petitioners, which stands verified by the revenue agencies, marked and enumerated by the territorial Range officers, nobody from the villages i.e., felling block of Village Kandjyar Tehsil Katra District Reasi as per personal knowledge of the petitioner have not filed any objection or raised any objection thereto.

p) That in terms of the Rule 6 sub Rule 4 the Divisional Forest Officer Reasi is under an obligation of dispose of the objections, if any, but in the present case the title verification marked/enumeration of the khair trees of the petitioners has already been completed by 19.03.2018. It is respectfully submitted that the petitioners are required to respond to the notification inviting applications for the grant of felling as well as transport permission of the khair trees and further require to pay the fee of Rs.10/-in terms of the SRO per tree and the petitioners had no other obligation to discharge for obtaining the felling permission of the khair trees in terms of the rules and if any delay is caused by the authorities petitioner cannot be punished for the same;

r) That the permissions stand granted by the divisional forest officers Jammu on 29.03.2017 for felling khair trees block Mathwar further the permission granted on 31.03.2017 for the felling of the khair trees from the private land by the Divisional Forest Officer Range Rajouri, for granted permission from Pouni, Kothian, Sudheen, Bhaga Kotlian.

s) That the respondents Divisional Forest Officer Range Reasi have been under obligation to grant the permission for the felling the khair trees from the private land of the petitioners in accordance with the rules but in the present case after obtaining the verification, enumeration of the khair tree whereover the petitioner are having the clear ownership, the respondents have not passed any order qua the application of the petitioners for the grant of felling permission;

t) That right to hold and dispose of the property in the fundamental right of the petitioners which stands recognized in terms of Rule 8 sub Clause 2 & 4 of SR0 111 of 2016 yet the respondent no.4 have not passed any order and then failed to exercise the jurisdiction in accordance with rules.

u) That this SRO completely deals with the regulation of felling removal transportation of the khair trees from the private land in accordance with the rules laid down therein as well as the management plan. Wherein it is specifically laid down that the management plan time period is to be followed whereover it is possible.

v) That the history of the case as stated supra showed the attitude of the state respondents towards the farmers of the state who for and more depended upon the cash crops in the nature of khair trees which usually grows on non-irrigated land as despite the direction passed by the Hon'ble Apex Court on 26.09.2013 for approval of the draft rules the state took three years in the publication of this rule in terms and SR0 111 of 2016 and despite the publication on 31.03.2016 the first notification stood issued on 24.09.2016 which should have been in April 2016 in terms of the management plan six months have taken by state to publish the villages where from the permission for the felling of the khair trees were to be granted as such the official respondent no.4 by sitting over the applications of the petitioners for the felling of the khair trees without passing any order thereover have violated the fundamental right of the petitioners right to equality, in terms of Article 14, right to dispose of the property in terms of 19 clause 1 sub clause F, further the right to life as enshrined Article 21 of the constitution.

On perusal of the orders passed by the Coordinate Benches of this Court, it is emanates that the petitions have been disposed of with the directions to the respondents to accord consideration to the claim of the petitioners under rules having regard to the other norms applicable thereto. In this regard, reference is also made to the SRO No.111 of 2016 referred (supra) issued by the State describing the modalities for grant of permission for removal of Khair Trees from the private land alongwith the judgment of the Hon'ble Apex Court in "Environment Awareness Form vs State of J&K and others".

Mr. Ajaz Lone, learned GA submits that consideration can be made in terms of the rules whereunder the norms for granting permission have been fixed after the cases have been cleared by the revenue agency.

Having regard to what is stated in petition, same is taken up for final disposal with the consensus of parties and accordingly the writ petition is disposed of with the directions to respondent Nos.1 to 5 to finalize the process of consideration of the case(s) of petitioners in pursuance of the SRO No.111 of 2016 and other norms applicable thereto including the directions of the Apex Court within a period of six weeks.

Decision taken in the case(s) be intimated to the petitioners at an earliest.