Shiva Katha Private Ltd. vs State and others

Heard learned counsel for the caveator. Caveat no. 3335/2017 is discharged.

Applicant is seeking leave to appeal against the order dated 11.10.2017 passed by the learned Single Judge in a writ petition, OWP no.

1944/2017, whereby the transportation of Khair wood/ timber from the State of J&K to outside the State has been stayed, for short, impugned

order.

Facts which are relevant for disposal of this application along with enclosed appeal are noticed as under:-

A Writ petition is stated to hav been filed by respondent no. 9 herein, who is stated to have set up a Katha plant at Samba Jammu, with an

object of defeating the purpose of the writ petition filed by the applicant/ appellant before the Jammu wing of this court being OWP no. 683/2017.

In addition to the said writ petition a group of villagers is also stated to have filed a writ petition, OWP no. 686/2017. Appellant''s writ petition,

OWP no. 683/2017, is stated to have been considered by the writ court on 9th May, 2017 and the detailed order came to be passed. The writ

petition, OWP no. 686/2017, was also dealt with on 3rd June, 2017 and a detailed order passed thereon. The writ petition, OWP no. 683/2017,

filed by the appellant herein, was taken up for consideration on 9th June, 2017, and the order as had previously been passed in OWP no.

686/2017 on 3rd June, 2017, came to be passed.

Thereafter, in terms of order dated 10th November, 2017, the appellant is stated to have been permitted to transport Khair Wood subject to

completion of formalities prescribed in this behalf.

That the felling of trees was strictly done in terms of the provisions of SRO 111 of 2016 with particular reference to Rule 8 (2).

The Writ Court, in terms of order dated 9th May, 2017, while taking note of the relevant provisions of the applicable Rules, directed the official

respondents to take decision on the recommendations of the Divisional Forest Officer, Jammu in his letter dated 27th April, 2017, addressed to

the Conservator of Forests, E-circle Jammu in accordance with Rules as notified in the Jammu and Kashmir Non Forest Land Khair Trees

Acacia Catechu"" (Management Plan) Rules, 2016, as also any other rules applicable thereto by passing a speaking order.

In the writ petition, OWP no. 686/2017, while deciding the MP no. 1/2017, the Writ Court directed the respondents to permit the petitioners of

that writ petition to transport the khair wood which has already been cut, under the supervision of the officers of the Forest Department who shall

prepare inventory of the khair wood, which shall be transported by the petitioners.

It is stated further in the memo of appeal that the subject matter involved in the writ petition in which the impugned order has been passed has

already been settled by the Division Bench of this Court in LPAOW no. 16/2017 in terms of order dated 11.04.2017, by observing 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 and as long as the conditions therein are satisfied, Khair wood can be transported

outside the State of Jammu and Kashmir.

Mr Z. A. Shah, learned senior counsel for the appellant, submits that Rule 8 (2) of the Jammu and Kashmir Non-Forest Land Khair Trees

''Acacia Catechu'' (Management Plan) Rules, 2016, does permit the transportation of the Khair wood outside the State of Jammu and Kashmir,

therefore, the impugned order being bad in law requires to be set-aside. The learned senior counsel further submits that the impugned order is bad

more for the reason that it is in conflict of the orders passed by the Writ Courts in the Jammu wing of this Court confirmed by the Division Bench

while dismissing the appeals against the said orders, therefore, requires to be set-aside.

Mr Shah, learned senior counsel, further submits that no prejudice is caused to the respondent no. 9, if the appellants are permitted to

transport the Khair wood outside the State of Jammu and Kashmir in its capacity as a Wood Based Industry. He further submits that the

applicable rules are also permit the transportation of the khair wood outside the state, therefore, the order impugned is passed in derogation of the

said Rules, as such, requires to be set-aside.

Mr A. H. Naik, learned senior counsel for the caveator, submits that the appeal is not maintainable as the impugned order is ad-interim order

only and is passed subject to objections of other side and valid till next date of hearing, therefore, is an interlocutory order and the Letters Patent

Appeal in terms of Clause 12 of the Letters Patent Appeal Rules, against the interlocutory order is not maintainable. He submits that in the event

the appellant is aggrieved of the impugned order, the proper course for the appellant was to seek vacation, alteration or modification of the

impugned order before the Writ Court itself.

Mr Naik, learned senior counsel for the caveator, submits that the Hon''ble Supreme Court has prohibited the transportation of the Khair

Wood in terms of its judgment delivered in Writ Petition (C) No. 202 of 1995 titled T. N. Godavarman Thirumulkpad v. Union of India & ors. He

further submits that even the State of Jammu and Kashmir had sought permission for transportation of timber in the pending writ petition by filing

IA no. 30 which has not been granted by the Supreme Court as reflected in its order dated 21.11.2016. He further submits that the decision

rendered by the Division Bench of this Court as referred to and relied upon by Mr Z. A. Shah, as having been passed in LPAOW no. 63/2016 is

a subject matter of Special Leave Petition and the Hon''ble Supreme Court has registered the submission with reference to the Division Bench

judgment being contrary to the orders passed by the Hon''ble Supreme Court.

Mr Z. A. Shah, learned Sr. counsel for the appellant, while rebutting the argument of Mr Naik, learned Sr. counsel for the caveator, submits

that the appellant being not the party in the writ petition, is seriously aggrieved of the order impugned as the same has not only adversely affected

the rights of the appellant but also has caused great prejudice to his rights. He further submits that the order impugned amounts to restraining the

appellant from continuing his business which is violative of his right guaranteed under Article 19 of the Constitution of India. When asked Mr Z. A.

Shah, learned senior counsel, submits that the appeal is maintainable as the principal relief has been granted in the interim order.

We have heard learned counsel for the appellant and the respondent no. 9. We perused the record and considered the matter. We deem it

proper to dispose of the appeal at this stage without calling for the returns of the official respondents, in view of the nature of the impugned order

being ad-interim and subject to objections and the writ petition pending disposal before the writ court. True that the subject matter of the writ

petition in which the impugned order has been passed has relevance to the adjudication of the matter by the Single Bench of this court at Jammu

wing and Division Bench in LPAOW no. 63/2016, but We cannot consider the matter on merits as the parties have yet to file the returns in the writ

petition. We cannot also render decision in the appeal on the recorded submissions of the learned appearing counsel for the parties merely because

that will prejudice the case and render the lis before the Writ Court as infructuous. The Writ Court has only passed the ad-interim order subject to

objections and valid till next date of hearing, therefore, is an interlocutory order and ordinarily, the LPA Bench does not interfere with the

interlocutory orders. The proper course, as adopted by the LPA Benches, as a precedent, is to avoid entertaining the Letters Patent Appeals at

the ad-interim stage and let the aggrieved party seek modification, alteration or vacation of the order or the dismissal of the writ petition on the

permissible legal grounds. In this connection, we refer to a case reported as 2010 (3) JKJ 552 delivered in case titled Shivam Enterprises v. Res.

Of Village Govindsar, Kathua & Ors.

We notice the difficulty expressed by Mr Shah, learned Senior Counsel, when asked as to why he has not approached the Writ Court for

seeking modification or vacation of the order on the legal grounds as have been raised before this Court which has reference to appellant being not

the party in the writ petition. We feel it appropriate to direct impleadment of the appellant as a party respondent in the writ petition so as to enable

him to file his objections and lay a motion seeking modification or vacation of the order impugned.

We also register the concern of Mr Shah, learned senior counsel for the appellant, with reference to the adjudication of the matter on the point

of impugned order being in conflict with the order passed by the learned Single Judge and against the observation made by the Division Bench in

the LPAOW no. 63/2016. We also deem it appropriate to ask Mr B. A. Dar, learned Senior Additional Advocate General, to cause his

appearance on behalf of official respondents with the purpose to ask him to file objections in the writ petition to enable the Writ Court to take up

the matter for disposal on the next date itself.

In the above background we allow the application seeking leave to file appeal. LPA no. 245/2017 is taken on board and disposed of in the

following manner:-

i) The appellant is impleaded as party/ respondent to the writ petition bearing no. 1544/2017. The appellant shall figure as respondent

no. 9 to the writ petition.

ii) All the respondents to the writ petition including the newly added respondent/ appellant, shall file reply within one week. The

respondent no. 9 to the writ petition is at liberty to file an application seeking modification, alteration or vacation of the impugned

order. We request the Writ Court to take up on priority the application, on being filed, seeking vacation or modification of the

impugned order alongwith the writ petition and dispose of the same on the next date of hearing only.

iii) Let the Writ petition along with all applications be listed before the Writ Court on 12.12.2017.