Sat Bhama Thakur vs State of Jammu & Kashmir and Ors

Dr. Saikia, C J.

This Letters Patent Appeal has been preferred against the Judgment and order dated 16.12.2010 passed by the Writ Court in OWP no.

151/2008 whereby the writ petition initiated by the appellant as writ petitioner was rejected taking into account that the petitioner's case for

transportation of forest materials cannot be entertained in view of the fact that the entire matter has already been considered and decided by the

competent authority.

The factual matrix necessary for the proper resolution of this appeal is that the appellant is the wife of one Prof. Jagir Singh, who is working as a

Professor in the Department of Sanskrit, University of Jammu. Appellant originally belongs to village Atholi Padder in the District of Kishtwar. It is

claimed by the appellant that she owns an ancestral house at Atholi Padder and she has also purchased a plot of land in Jammu with a view to

construct her house on the said plot of land. She has intended to transport finished wood like Doors and Window frames taken out from her

dismantled house from Atholi Paddar, Kishtwar to Jammu. Accordingly, she has sought permission from the competent authority/authorities for

transportation of those finished wood, i.e., Doors and Window frames.

However, in view of the fact that since there is restriction imposed on the transportation of the timbers vide Order No. 1622-43/HAD/CCF

dated 2.12.1999 issued by the Chief Conservator of Forests, Jammu, the Forest authorities have not allowed the appellant to move the finished

woods from Kishtwar to Jammu.

Challenging the refusal for such transportation of finished woods from Kishtwar to Jammu, the writ petition has been filed which has been

dismissed by the impugned judgment.

Heard Mr. S.S. Lehar, learned Senior Counsel assisted by Mr. Meharban Singh, learned counsel appearing for the appellant as well as Mr.

Jagdish Parihar, learned Additional Advocate General, for the respondents, at length.

Mr. Lehar, Learned senior counsel has submitted that an exemption is permitted for transportation of finished wood, i.e., Doors and Window

frames from the ambit of permission required vide R.4 (Form 25) of Land Transport Rules (hereinafter referred to as ""the Rules""), in terms of

Notification issued by the Principal Chief Conservator of Forests, J&K under No. 393-410 dated 25.10.1997. He has also submitted that those

finished woods like doors, windows etc. that become available due to dismantling of appellant's old house, in terms of another Notification 2078-

86/F.25 dated 8.8.1997, have been excluded from the ban on transportation imposed under Rule 4 of the Rules.

Mr. Parihar, learned Additional Advocate General has accepted the above legal position.

The sole issue involved in this appeal is as to whether the appellant's finished and old wood items, i.e., Doors, Window Frames and Shutters are

exempted from the requirement of permission for transportation from Kishtwar to Jammu.

In the State of Jammu and Kashmir there is total ban on the transportation of timber and this legal position has been governed by the Jammu and

Kashmir Forest Act, 1987 (1930 A.D.) and the Rules framed thereunder. In Rule 4 of the Rules, it is provided that:

No timber or other forest produce shall be moved on any route on which a depot or check post has been established unless covered by a pass

issued by the Forest Officer or the Revenue Officer or by the owner of a private forest or his agent.

In the case in hand, the transportation in question is of appellant's old finished wood items like Doors, Window frames and Shutters of the

demolished house situated at her ancestral house at Kishtwar to Jammu and according to the Notification mentioned above, all those items are

exempted from the purview of this ban.

Accordingly, we find that there is sufficient force in the submission of Mr. Lehar, learned Senior counsel for the appellant.

In view of the above, this appeal is allowed and impugned judgement and order dated 16.12.2010 is set aside.

Accordingly, the concerned competent authority is directed to examine the matter in the light of the Notification mentioned above and consider

grant of exemption for transportation of the specific finished wood items like Doors, Window frames and Shutters from appellant's demolished

house to Jammu having regard to the Notifications as mentioned above.

Mr. Parihar, learned Additional Advocate General has drawn our attention to a communication being No. 1566/KFD dated 24.9.2007 made

by the Divisional Forest Offer to the Conservator of Forests, Chenab Circle, Doda pertaining to such transportation of finished wood like Doors,

Window frames and Shutters of demolished house. The said communication is taken in the file to form part of the record.

Be it made clear that this direction and order shall be confined to this case only.