Back
2017 Supreme(J&K) 732
IN THE HIGH COURT OF JAMMU AND KASHMIR
BADAR DURREZ AHMED, ALOK ARADHE, JJ.
J.K. KATHA TH. ITS PROP. AND OTHERS - Appellants
Vs.
STATE TH. FOREST DEPTT. AND OTHERS - Respondents
LPAOW No.63 of 2016 & MP Nos. 1 of 2016, 1 of 2017, 2 of 2017, 3 of 2017, 4 of 2017 & 5 of 2017
Decided On : 11-04-2017
For the Appellants :Mr. A.H. Naik, Sr. Advocate With Mr. Rahul Sharma, Advocate.
For the Respondents:Mr. Jehangir Iqbal Ganai, Advocate General With Mr. Ayjaz Lone, G.A., Mr. Sunil Sethi, Sr. Advocate With Mr. Paras Gupta, Advocate.
The court clarified the absence of a promise by the State to the Katha manufacturers, establishing that no case for promissory estoppel was made out.
Headnote:
Promissory Estoppel - Jammu and Kashmir Non-Forest Land Khair Trees 'Acacia Catechu' Management Plan Rules, 2016 - Rule 8
Fact of the Case:
The appellants challenged Rule 8(2) and (4) of the Jammu and Kashmir Non-Forest Land Khair Trees 'Acacia Catechu' (Management Plan) Rules, 2016, on the ground of Promissory Estoppel.
Finding of the Court:
The court found that there was no promise made by the State to the Katha manufacturers regarding the supply of Khair wood within the State, and therefore, no case for promissory estoppel was made out.
Issues: The main issue was whether the new Rules of 2016 reneged on a promise made by the State to the Katha manufacturers.
Ratio Decidendi: The court analyzed the provisions of Rule 8 and the history of regulations regarding the transportation of Khair wood, and concluded that no promise for exclusive use of Khair wood within the State was made by the State to the Katha manufacturers.
Final Decision: The appeal was dismissed.
1. 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 Non-Forest Land Khair Trees 'Acacia Catechu' (Management Plan) Rules, 2016 SRO 111 of 2016 [2016 (27) JK Statutes JK-643] (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 (1939 A.D.) (herein-after referred to as the said Act).
2. 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.
3. On going 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.
4. 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 :
8. 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 from 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 A.D.) shall be eligible to deal with sale/purchase/disposal of khair wood.
(4) The transportation permission may be issued within the State by 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 Khair 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 Khair 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'."
5. 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.
6. Sub-Rule (4) of the Rule 8 deals with the transportation permission which includes transportation within the State and outside the State. Earlier Rules had been issued in 1995 under SRO 194. The 1995 Rules and in particular Rules 3 and 10(2) were relied upon by the learned counsel for the appellants to suggest that under those rules, transportation outside the State of Jammu and Kashmir was not permissible. This is in respect of Khair trees.
7. Founded on this argument, the learned counsel f
