IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

OWP No. 89/2001

Estate Officer, (Divisional Forest Officer) Jammu Forest Division and Ors. Vs. Mst. Jitto Devi Wd/O Late Sh. Rikhi Ram andAnr.Decided On: 06.02.2003

Hon’ble Judges:
S.K. Gupta, J.

Acts/Rules/Orders:
Jammu and Kashmir Forest Act, 1987 – Section 48A; Jammu and Kashmir Special Tribunal Act, 1988

Jurisdiction of Tribunal to hear the appeal arising under Section 48-A of the Jammu and Kashmir Forest Act 1987.

The present writ petition filled before the H.C. of Jammu And Kashmir At Jammu against the decision of Jammu and Kashmir Special Tribunal, Jammu.This case was called upon to decide which Authority has the jurisdiction to hear the appeal arising under Section 48-A of the Jammu And Kashmir Forest Act, 1987? Is it the tribunal or the chief conservation of Forests?

An eviction order pertaining to the Forest Land located at village Birpur Tehsil samba was passed by the Divisional Forest Office,Jammu against Mst Jitto Devi. An appeal was preferred before the J&K Special Tribunal to impugn the correctness of the order of the Estate Officer. A plea based on SRO-777 of 1972 was raised before the Appellate Court (J&K Special Tribunal, Jammu) that it is only the Chief Conservator of Forests authorized to hear the appeal under Section 48-A of the forest Act and tribunal has no jurisdiction. The Appellate Court concluded that the appeal is maintainable before the Tribunal which became the subject matter of challenge in this writ petition.

Counsel appearing for the petitioners, submitted that tribunal had only the power to hear the appeals, revisions and review petitions which were maintainable before the Government or a Minister prior to coming the J&K Special Tribunal Act 1988. His further submission is that an appeal arising under Section 48-A of the Forest Act would neither lie before the Government nor the Minister after the issuance of notification SRO-777 of 1972. It was only the Chief Conservator of Forests authorized to hear the appeal under Section 48-A of the Forest Act and as such tribunal had no jurisdiction to entertain and hear appeal in such cases

The main plank of the petitioners’ argument is that power to hear the appeals arising out of an order passed under Section 48-A of the Forest Act vested only with the Chief Conservator of Forests and not with the Government or a Minister, obviously based on SRO 777 of 1972 dated 01/11/1972. Prior to the enforcement of the J&K Special Tribunal Act 1988, such appeals were not maintainable before the Tribunal. That tribunal has not interpreted the provisions of Section 3 of the J&K Special Tribunal Act 1988 in its right perspective.

A plain reading of the Section 48-A (3) of the Forest Act� makes it abundantly clear that the appeal against the order of Forest Officer would lie before the Government or to such an officer as may be authorized in this behalf, by an aggrieved person. However, with the issuance of SRO-777 dated 01/11/1972, the Government authorized the Chief Conservator of Forest in the Department and vested him with power by Sub-section (3) of Section 48-A of the J&K Forest Act Subsequently, Jammu & Kashmir Special Tribunal Act, 1988 was enforced and the powers to hear the appeals, revisions & review petitions under any law made by the Legislature, that lie with the Government or the Minister, would be preferred and heard before the Tribunal.

Court hear observed� that Section 3 of the J&K Special Tribunal starts with non obstante clause. A clause beginning with ‘Notwithstanding anything contained in any law made by the State Legislature,’ is something appended to a section in the beginning, with a view to give the enacting part of this section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. The proper approach would be that the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment. Thus paying attention to what has been stated in Section 3 of the J&K Special Tribunal Act, it is clearly deducible that the power exercised by the Government or the Minister with regard to hearing of appeals, revisions and review petitions hither-to is vested with the Tribunal. This makes it clearly manifest that the Chief Conservator of Forests is a functionary/agent of the Government, exercised power of appeal on behalf of the Government or a Minister based on notification SRO-777 of 1972. When the powers of the Government or a Minister with regard to the appeal, revision or review have been taken away with the coming into force the J&K Special Tribunal Act, 1988, such powers no longer remain with its functionaries and to act on their behalf.

The inevitable conclusion, therefore, reached is that appeal arising out of order passed under Section 48-A of the J&K Forest Act, 1987 would lie before the Tribunal under the J&K Special Tribunal Act, 1988 and is accordingly dismissed.