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Judgment
Aggrieved by the finding returned by respondent no.2 Jammu & Kashmir Special Tribunal, Jammu, that the Tribunal has jurisdiction to hear the
appeal rising under section 48A of the Jammu and Kashmir forest Act, 1987, the petitioner have invoked the writ jurisdiction of this Court with a
plea that after the issuance of SRO777 of 1972 dated 01/11/1972, such appeals are maintainable only before the Chief Conservator 'of Forests
and neither the Government nor the Minister has any power to entertain the same and hear the appeal. It is further state that respondent has
exercised the jurisdiction not vested in it and the order impugned is without jurisdiction and untenable in law.
A skeual projection of facts may be noticed in resume. An eviction order pertaining to the Forest Land contained in khasra No: 1734/1845
located at village Birpur Tehsil Samba was passed by the Divisional Forest Officer, Jammu against Mst. Jitto Devi respondent No.1. An appeal
was preferred before the J&K Special Tribunal to impugn the correctness of the order of the Estate Officer. A plea bases on SRO777 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 48A of the Forest Act and respondent no.2 has no jurisdiction. The Appellate Court, after hearing the parties and perusing
the relevant provision of law touching the matter .in controversy, concluded that the appeal is maintainable before the Tribunal vide order dated
20/12/2000, which became the subject matter of challenge in this writ petition.
Considered the arguments putforth by the learned counsel appearing for the respective parves and also perused the relevant provision of law
meticulously.
Mr. S.K. Anand, learned counsel appearing for the petitioners, at the threshold, submitted that respondent no.2 had only the power to hear the
appeals, revisions and review petitions which were maintable 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 48A of the Forest Act would neither lie before the Government nor the Minster
after the issuance of notification SRO 777 of .1972. it was only the Chief Conservator of Forests authorized to hear the appeal under section 48A
of the Forest Act and respondent no.2 had no jurisdiction to entertain and hear appeal in such cases.
To appreciate debate addressed by the petitioners 'Advocate Sh. S.K.Anand, it will be appropriate to advert to the relevant provision of Forest
Act and the J&K Special Tribunal Act, 1988. Section 48A(3) of the J&K Forest Act as under:
(3) Any person aggrieved by an order of the Forest Officer under such subsection (1) may, within such period and in such manner as may be
prescribed, appeal against such order to the Government or to such officer as may be authorized by the Government in this behalf and the order of
the Forest Officer, shall, subject to the decision in such appeal, be final.
A plain reading of the provision 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 SRO777 dated
01/11/1972, the Government authorized the Chief Conservator of Forest in the Department and vested him with power by subsection (3) of
Section 46A of the J&K Forest Act(hereinafter referred to as the Act for the purpose of such subsection). 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. For facility of reference, section 3 of the J&K
Special Tribunal Act is reproduced below in verbatim:
Appeals, revisions etc. to the Tribunal:
(i) Not withstanding anything contained in any law made by the State Legislature but save as otherwise provided in subsection (2) an appeal,
revision or review petition which under any such law lies to the Government or a Minister shall, from such date as may be . appointed by the
Government by notification in the Government Gazette, lie or be so preferred, brought, made or presented to the Tribunal and accordingly any
reference in any provisions of such law, which relate to the matters aforesaid, to the Government or the Minister shall be construed as a reference
to the Tribunal, (ii) Nothing in subsection (1) shall apply to any appeal, revisions or review petitions arising by or under the provisions of Jammu
and Kashmir Grant of Permanent Resident Certificate (Procedure) Act, 1963, or the rules framed thereunder.
(iii) The Tribunal shall also exercise all the jurisdiction, powers arid authority in relation to such appeals, revisions and review petitions as the
Legislature may by law provide.
The main plank of the petitioners' argument is that power to hear the appeals arising out of an order passed under section 48A of the Forest Act
vested only with the Chief Conservator of Forests and not with Government or a Minster, obviously based on SRO 777 of 1972 dated 01/117
1972. Prior to the enforcement of the J&K Special Tribunal Act 1988, such appeals were not maintainable before the Tribunal. That respondent
No.2 has not interpreted the provisions of section 3 of the J&K Special Tribunal Act 1988 in its right perspective.
It is pertinent to find out that section 3 of the J&K Special Tribunal starts with the nonobstante clause. A clause beginning with 'Notwithstanding
anything continued 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 conflicts overriding effect over the provision or Act mentioned in the nonobstante clause. It is equivalent to saying that
in spite of the provision of Act mentioned in the nonobstante clause, the enactment following it will have its full operation orthatthe provisions
embraced in the nonobstante clause will not be an impediment for the operation of the enactment. The phrase 'notwithstanding anything in' is used
in contradistinction to the phrase 'subject to', the latter conveying the idea of a provision yielding place to another provision or other provisions to
which it is made subject. A non obstante clause must also be distinguished from the phrase 'without prejudice', Ordinarily, there is a close
approximation between the non obstante clause and the enacting part of the section and the non obstante clause may throw some light as to the
scope and ambit of the enacting part in case .of its ambiguity, but when the enacting part is clear its scope cannot be cut down by resort to
nonobstante clause. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of
the words thereof a nonobstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the nonobstante
clause has to be read a clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way
of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment 9. The proper approach would be that
the nonobstante clause is to be understood 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 hitherto 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 SRO777 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 contention raised by Mr. Anand, learned counsel appearing for the petitioners is, therefore, without substance and does not merit
acceptance.
The inevitable conclusion, therefore, reached is that appeal arising out of order passed under section 48A of the J&K Forest Act, 1987 would
lie before the Tribunal under the J&K Special Tribunal Act, 1988.
In the facts and circumstances of the case, I do not find any jurisdictional infirmity in the order impugned propounded by the J&K Special
Tribunal, assailed in this petition. For what has been stated and discussed above, there is no merit in this petition and is accordingly dismissed.