Sanjay Kumar Gupta vs State of J & K

N. Paul Vasanthakumar, C.J. - This appeal is filed against the order made in OWP No. 739/2011 dated 26.08.2013 wherein the appellant had

prayed for giving directions to the respondents to revive the small scale unit of the appellant i.e. Kashmir Herbal Industry and compensate the

appellant in respect of the deterioration of the stocks that took place when the material remained dumped at different places after removal from the

demarcated forest as there was delay in allowing the appellant to put the finished products in the market under the garb of ban imposed on the

extraction of minor forest produce.

Brief facts necessary for disposal of this appeal, according to the appellant, are follows:-

a) The State of Jammu and Kashmir with a view to boost the local small scale industrial units for providing employment opportunities to the

educated unemployed youths, took a decision to establish small scale industrial units to which the minor forest produce countrified the raw material

for processing. Minor forest produce in abundance are available in the Chenab circle Doda district. The appellant set up a small scale industrial unit

(Kashmir Herbal Industries) at village Panditgam Asrarabad, Kishtwar District. It is averred by the appellant that the said unit completed all the

required formalities for registration as a small scale unit and District Industries Centre, Doda, provisionally registered the Unit under registration

No. DIC/D/1720 dated 16.12.2002. The said registration was made permanent by assigning registration No. DIC/D/E.T./3033 dated

31.01.2004. According to the appellant, vide order dated 23.06.2003 permission for extraction/collection of minor forest produce was granted in

favour of the appellant for the year 2003-04 from Kishtwar, Bhaderwah and Doda forest divisions on royalty basis. After the grant of such

permission the appellant extracted the minor forest produce and refined/processed for transportation to various places for utilization of the said

material. The collected minor forest produce was stored at different places for further processing in the small scale unit of the appellant.

b) On 14.07.2004 the Government issued order imposing a complete ban on extraction of minor forest produce for a period of five years. Thus,

the permission granted in the year 2004 was scuttled by the order imposing ban. It is claimed in this appeal that there was no ban on processing of

the already extracted minor forest produce, which stood stored by the appellant at different places' as well as for transportation of already refined

material to different destinations. The ban order having been issued only for extraction of minor forest produce from 14.07.2004 and it having no

effect on the utilization/processing of minor forest produce and for transportation of the said material, the action of the respondents in not allowing

the appellant to transport the already refined/processed minor forest produce to the market caused great hardships and the appellant filed OWP

No.386/2005 and this Court vide order dated 27.06.2005 gave interim directions stating that if the application seeking grant of necessary

permission is pending, the authorities may take a rational decision in accordance with the rules as early as possible. In spite of the said directions

issued, no action was taken due to which the appellant was subjected to severe loss and inconvenience as he could not transport his

refined/processed minor forest produce to different destinations in time. On 04.08.2004 permission was granted to the appellant to transport the

finished material as and when required after obtaining attestation from the Range Officer on delivery of the challan. The said order was granted for

a period of four months and on 09.12.2004 the Chief Conservator of Forests restricted the period of permission to transport out the finished

goods upto 15 days only. A further permission was granted on 28.04.2006 and during the gap of about one and a half years the finished goods of

the appellant suffered gravely and adversely as the medicinal value of the finished goods got considerably damaged and therefore, the said goods

could not be sold out. According to the appellant, he has suffered huge losses to the tune of Rs. 2.00 crore.

It is the further case of the appellant that the ban order passed on 14.07.2004 was only for a period of five years and even after expiry of the

ban period the industrial units were not granted permission for extraction of minor forest produce from the demarcated forest in the Chenab Circle

Doda. The appellant submitted a representation before the concerned authority and the period of ban order having been over by July, 2009 and

subsequent ban order having been issued only in the year 2013, the appellant was entitled to get permission. The permission having not been

granted from July 2009 to 08.04.2013 the appellant filed the writ petition with the above said prayer and the learned Single Judge dismissed the

writ petition holding that the permission was granted to the appellant for extraction/collection of minor forest produce only for the year 2003-04

from Kishtwar, Bhaderwah and Doda Forest Divisions on royalty basis on the condition that extraction can be made only upto the end of

December, 2003 and transportation upto the factory by March, 2004 and no permission was granted. The Government took a policy decision to

impose ban on extraction of minor forest produce for a period of five years, taking note of the destruction of the minor forest produce over a

period of time. The said ban order was issued on 14.07.2004 and the appellant was granted extension of time for transportation of the material

upto end of July, 2004. The appellant was also granted permission for transportation of finished material outside the State though initially he was to

utilize the same only within the State. The learned Single Judge also held that even after the period of ban was over the permission granted to the

appellant having been only for a period of one year, the appellant has no vested right to extract the minor forest produce from 21.07.2009 to

09.04.2013.

It is the contention of the learned counsel for the appellant that the appellant having registered his unit as small scale industry and having been

granted permission to extract the minor forest produce for one year, it is the duty of the respondents to grant further permission at least after lifting

of the ban till issuance of the subsequent ban order and not granting permission to extract the minor forest produce and the delay in not giving

permission to transport the finished products has caused great loss to the products and the appellant is entitled to get compensation from the

respondents for such losses. Learned counsel also relied on certain decisions by stating that in appropriate cases the constitutional courts can order

compensation for the loss sustained either due to inaction or delayed action on the part of the government authorities in exercise of powers vested

under Article 226 of the Constitution of India.

The learned senior Addl. Advocate General, appearing for the State on the other hand contended that the claim of damages sought by the

appellant in the writ petition cannot be decided as disputed facts are involved and unless the appellant establishes his right to collect the minor

forest produce and wilful delay on the part of the authorities is established and actual losses sustained due to said delay before an adjudicatory

forum, the learned Single Judge was right in dismissing the writ petition. The learned Sr. Addl. Advocate General further submitted that insofar as

the first prayer, i.e. accord permission to extract minor forest produce is concerned, if and when the ban order issued is lifted the appellant can

very well participate in the auction to be held and permission to collect the minor forest produce cannot be claimed as a matter of right, hence, no

mandamus as prayed could be ordered and the learned Single Judge was right in rejecting the said prayer also.

We have considered the rival submissions.

It is not in dispute that the appellant was granted permission to extract the minor forest produce for a period of one year (2003-2004) and

according to the appellant, on the basis of permission granted, the appellant has collected minor forest produce and stored them for transportation.

The ban order was issued on 14.07.2004 for a period of five years. Therefore, from 14.07.2004 no one including the appellant is entitled to

collect any minor forest produce and even after the expiry of five years, unless permission granted is renewed, the appellant is not entitled to

extract the minor forest produce. During the pendency of the writ petition another ban order was issued by the Government in government order

No. 154-FST of 2013 dated 09.04.2013. In such circumstances, the first prayer made before the learned Single Judge, i.e. commanding the

respondents to accord permission to extract minor forest produce, is not maintainable. However, if and when the ban order imposed on

09.04.2013 is withdrawn, the appellant can very well approach the appropriate respondent for grant of permission and if any such application is

submitted after withdrawal of the ban, the same shall be considered on merits and in accordance with law.

As far as the prayer for payment of compensation is concerned, the facts are in dispute. It is not known how-much quantity of the minor forest

produce was stored and appellant sustained how much amount due to delay in issuing the transport permission. It is a well settled proposition of

law that the disputed facts cannot be decided in a writ petition and the said issue is no longer res integra. Whether the High Court is entitled to go

into the disputed questions of fact in a writ petition filed under Article 226 of Constitution of India, is already decided by Hon'ble the Supreme

Court in the following decisions:-

(a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments,

Hyderabad and Others) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court

was upheld by the Supreme Court.

(b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Another) it is held that the

disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows:

The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive

benefit of the judgment of this Court in R.K. Panda case ((1994) 5 SCC 304) was essentially a question of fact....

In paragraph 22, Hon'ble the Supreme Court further held as follows:

.... a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a

Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers ((2001) 7 SCC 1)...........

(c) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Others), Hon'ble the Supreme Court held that ‘the statement of the appellant

or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such

a disputed question of fact could not be entertained'.

(d) In yet another decision reported in (2006) 7 SCC 654 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows:

Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by

the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached

a civil court of competent jurisdiction to adjudicate the matter.

The decision cited by the learned counsel for the appellant are distinguishable as the facts in this case are in dispute and the alleged loss

sustained by the appellant can be proved only before the appropriate Civil Court after recording evidence and appreciation of documents. Hence

the prayer made for award compensation to the appellant cannot also be decided and the L.P. Appeal is dismissed. This order will not preclude

the appellant to file appropriate suit for claiming compensation/damages if the appellant really sustained loss due to action/inaction on the part of the

respondents and if any such civil suit is filed the same shall be considered and decided by the Civil Court in accordance with law.

The writ appeal is dismissed with above liberty.