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PETITIONER: STATE OF J. & K.

       Vs.

RESPONDENT: ROMESH CHANDER & ORS.

DATE OF JUDGMENT:       27/11/1996

BENCH: K. RAMASAWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the order of the High  Court of Jammu and Kashmir, made on April 23, 1992 in Criminal  Revision No.  6/92. The  respondents  5  to  7, namely, Sudhir  Kumar, Sharat  Kumar and Davinder Kumar were granted lease  to extract timber from compartment No. 55-56, Bani Range  of Billawar  Division. It is not in dispute that the lease  of April  28,  1978  was  to  be  effective  upto December 31,  1986. It is stated by the respondents that for certain other  purposes, it  was extended  upto December 31, 1987. We  need not record any findings in that behalf. It is only noted as asked for. The Government have passed an order on  February   22,  1985   directing  the   aforesaid  three contractors to  complete the  extraction of  the timber upto September 3,  1984 and  thereafter unsalvaged  timber  would stand vested  in the  State. Admittedly,  this  is  only  an administrative order.  On September  24, 1985, the Jammu and Kashmir State  Nationalisation of  Forest Working  Act, 1985 was enacted.  Thereunder, all timber lying within demarcated forests stood  vested in the State w.e.f. the aforesaid date notwithstanding any  lease or agreement subsisting as on the date. The  Government order  dated  November  22,  1984  was stayed by  the High  Court on  March 12, 1984 by an order in W.P. No.  48 of  1983  and  C.M.P.  No.  2120/84.  When  the respondents filed  the Writ  Petition No. 968/85 challenging the validity  of the  Act, the High Court passed an order as under:      "The DFO  Billawar is  appointed as      Commissioner who  shall go  to  the      launching sites  in respect  of the      compartment  No.   55-56   Basohli,      Bani, Range  Billawar Division  and      shall  ensure  that  on  timber  is      launched in  the nallah  after  the      passing of  this order i.e. 13th of      November 1985  by  the  petitioner.      The DFO  Billawar shall however not

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    interfere with  the timber  already      launched in  the nallah.  The  said      timber shall  be  permitted  to  be      brought by  the petitioner, through      his labour at his own risk and cost      and without prejudice to the rights      of the  parties  upto  the  western      bank of river Ravi, opposite to the      collection      point       Shahpur      Kandilocated on the eastern bank of      river Ravi  within the State of J &      K. The  petitioner shall  have  the      timber  already   launched  in  the      nallah brought  to the western bank      of river  Ravi, as  noticed  above,      under    the     supervision     of      DFO/Billawar or  his nominees.  The      petitioner shall  have no  right or      lien over  the timber so brought to      the western  bank  of  river  Ravi.      Save as may be decided subsequently      by the Court on the disposal of the      writ  petition.   The  timber  when      brought  to  the  western  bank  of      river Ravi  shall be  stocked there      against proper  receipt  and  shall      remain under the charge and control      of the  Forest Department  and  the      petitioner  shall   not  cause  any      interference in  that regard.  This      may  subsequently   be  varied   or      modified in  that behalf  by either      of the  parties after notice to the      opposite party."      Thereafter, the  Act came to be struck down by the High court  on   December  13,   1985.  The   Jammu  and  Kashmir Nationalisation of  Forest Working  Ordinance No.  5 of 1986 was passed  on January  31, 1986  with retrospective  effect from September  24, 1985. It would appear that the Ordinance lapsed and  subsequently another  Ordinance  was  issued  on December 16,  1986 which  was  replaced  by  the  Jammu  and Kashmir Nationalisation  of Forest  Working Act,  1987 which came into  effect from  April 21,  1987  with  retrospective effect from  September 24,  1985. Since  the Ordinance  5 of 1986 was given effect from September 24, 1985.      Section 3(a)  of the Ordinance 5 of 1986 envisages that "notwithstanding anything  to the  contrary contained in any law, rule  instrument,  agreement  or  contract  or  in  any judgment, decree  or order of any court or Authority as from the commencement of this Ordinance, no person shall fell any tree or  convert any  timber or  carry on the felling of any tree  or   conversion  or  removal  of  any  timber  in  any demarcated forest  of the  State ...".  Section 9 prescribes penalty and  states that  "any person  who  contravenes  the provisions of  this Ordinance  or  abets  the  contravention thereof, shall  be punishable  with imprisonment  for a term which may  extend to  five years  but shall not be less than three years."  The appellant  filed an  FIR alleging therein certain accusations against four named officers and also the respondents lessees.  After conducting the investigation the charge sheet  was filed  by the police against seven persons including the aforesaid three lessee-respondents for several offences and  also the  four officers for offences including conspiracy in  permitting lessee-respondents  to remove  the timber from  the demarcated forest etc, the details of which

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we are  not mentioning  for  the  reason  that  we  are  not disposing of  the matter  on merits at this stage. The trial Judge discharged  all the  accused. On filing of a revision, the High  Court in  the impugned  order confirmed  the same. Thus, this appeal by special leave.      Shri Manhas,  learned counsel  appearing for the State, contends that  the trial  court and  the High Court were not right in discharging the accused. It is necessary to mention that D.F.O.,  Khojaria and Chowdhary Girdhari Lal have died. Therefore, the  prosecution against  them stands abated. The question is:  whether prima  facie case  has been  made  out against the  respondents? Shri  D.D. Thakur,  learned senior counsel appearing  for respondents  5  to  7,  the  lessees, contends that  they did  not commit  any offence and they do not come  under the  provisions of either the Ordinance 5 of 1986 or  the Act  which was quashed by the High Court or the Act No.  7 of  1987. Therefore,  no case  has been  made out against them.  As stated earlier, we decline to consider the matter on  merits for  the reason that the High Court should have considered  all the  relevant provisions of the Act and offences and  the contentions  of the  parties  taking  into consideration the  averments made in the charge-sheet. It is now settled  law that  the  charge-sheet  constitutes  prima facie  evidence  constituting  the  offence  for  proceeding further in the matter. necessarily, therefore, the Court has to look  into the  relevant law  and the allegations made in the charge-sheet  and then consider whether any of fence has been committed to frame charges for trial before discharging the accused.  Since the  High court  has not  done that,  we think it  proper that  the High  court should reconsider the matter and  dispose it  of in  accordance with  law. All the contentions raised by the learned counsel on either side are left open.  it is open to the counsel to argue the matter in the High Court.      The appeal  is accordingly  allowed  and  the  case  is remitted to  the High Court for disposal. Since it is an old case, we  would request  the High  Court to dispose it of as expeditiously as  possible  within  three  months  from  the receipt of this Order.