Excelsior Correspondent
Srinagar, Feb 9: In a landmark judgment High Court has held that certiorari cannot be issued against legislative enactment as same is beyond its legal powers rather proper relief be sought to declare a particular enactment as ultra vires of constitution.
DB made this observation while dismissing the petition of a unit holder, who was seeking ‘writ of certiorari’ to quash the meeting of the State Level Committee which allows the authorities to export the Khair wood outside the State.
Petitioner approached the Court to seek quashing of meeting of the State Level Committee held on 11.07.2017 and authorities be directed not to allow the export of Khair wood/timber from the J&K State to outside State.
“At the outset, it may be pointed out that writ of certiorari for quashing statutory rule is not a writ to be asked for. Certiorari cannot be issued to declare legislative enactment and subordinate legislation as ultra vires rather proper writ to be asked for is writ of Mandamus seeking declaration of a particular legislative enactment/ subordinate legislative as ultra vires the Constitution”, Justice M K Hanjura recorded.
The Government has been inviting and alluring the people from outside the State to establish the industrial units and to achieve this object, the State has from time to time provided various incentives to these units.
The petitioner in tune and in line with this phenomenon applied for and was registered as a Katha Manufacturing Unit in the State under the name and style of “M/s Jammu Industry”.
The State issued SRO 111 dated 31.03.2016 for the disposal and utilization of Khair trees standing on the State and the private lands and this SRO has the effect of meddling into the directions of the Supreme Court passed in a Public Interest Litigation dealing with the wood based industry which included the Khair as well.
In the Public Interest Litigation, the Supreme Court directed that the State shall constitute a committee to take a decision for the grant of license/permission to wood based industries on the basis of the availability of the raw material.
The petitioner is aggrieved of the minutes of the meeting held by the State Level Committee on 17.07.2017, whereby it has been resolved that the installed capacity of Khair manufacturing units registered in the State is only 10,000 Cum while as the actual availability is 20,970 Cum.
He submits that the SLC (State Level Committee) has wrongly by misleading themselves stated that the installed capacity of Khair manufacturing units registered in the State is only 10,000 Cum. The actual availability is 20,970 Cum and the logic behind making this statement is to give vent to the nefarious designs of the concerned officers to pave way for allowing the export of Khair wood/timber, which if allowed, will be violative of the directions of Supreme Court as also the order issued by the Ministry of Forests, Environment and Climate Change.
In its reply, Chief Conservator of Forests submitted that the J&K Forest Department is not providing any incentives for establishing Katha Manufacturing Units in Jammu province which are wood based industries in terms of SRO 103 of 2012.
“There is no promise made by the Forest Department or by the Government of J&K to the petitioner or any other wood based industry that the raw materials (khair wood) will be supplied to the petitioner or any other such unit holders by the Government or by any other Government Agency”, CCF said in reply.
Court questioned that whether the export of Khair wood/timber from the State of J&K to the outside States is permissible. Whether the Forest authorities can be commanded to allow the export of Khair wood, only to the extent to which it becomes available after meeting the requirements of local Katha Units and, whether in the minutes of the meeting held by the State Level Committee on 11.07.2017, the capacity/requirement of the local Katha Units has not been spelt out correctly.
“By putting clog on his right to dispose of his product would be rather unconstitutional. Petitioners have no vested right to claim that owners of the product, as Khair wood in the instant case, should sell their product to them only, particularly those residing within the State of Jammu and Kashmir”, reads the judgment.
Court said, if such submission if accepted would put unreasonable restriction on the right of individual to enter into inter State treaty, which is prohibited under the Constitution.
After applying the Supreme Court ruling, court said, there is no contradiction in allowing sale of Khair wood within or outside the State of Jammu and Kashmir that too for its utilization in the industrial units.
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