Orissa High Court
Punia Biswal vs Divisional Forest Officer, Rairakhol ... on 6 March, 1990
Equivalent citations: AIR1990ORI219, AIR 1990 ORISSA 219, (1990) 70 CUT LT 181
JUDGMENT S.C. Mohapatra, J.
1. This is an application under Article 226 of the Constitution of India.
2. Petitioner purchased some standing trees from other private persons who claim those trees to be standing on their private land. On the basis of such purchase, petitioner filed an application on 16-4-1980 before the Tahasildar (O.P. No. 4) for a joint verification and on 20-4-1980, the fact of purchase was communicated to the Divisional Forest Officer (O.P. No. 1). On 28-4-1980, petitioner requested the Divisional Forest Officer to direct the Range Officer (O.P. No. 2) to take necessary steps for joint verification for which application in Form No. III was filed. On 5-6-1980, Divisional Forest Officer directed Range Officer to take up joint verification. Four months after, on 29-10-1980, petitioner requested the Divisional Forest Officer to depute an Amin of the Forest Department and forest officials for joint verification. On 1-11-1980. Verification was made and Range 'Officer submitted the report with the map on 6-1-1981. Thereafter, on 12-1-1981, Range Officer was directed to take up joint verification which was made on 22-4-1981. A list of trees standing on the periphery of the land on which the trees purchased was prepared on 24-8-1981. After completion of these formalities, royalty paid by petitioner was accepted on 13-5-1981 and on 20-5-1981, Divisional Forest Officer called upon petitioner on 9-6-1981 to register his property mark and take steps for conversion. He directed Range Officer on 27-6-1981 to issue timber transit permit. A list was prepared in respect of 121 trees. It is claimed that after issue of such permit for some trees, no further timber transit permit was issued. Against the same on 25-1-1982, petitioner made a representation to the Chief Consrvator of Forest and the State of Orissa. When the representations were pending consideration, petitioner received a notice from the Divisional Forest Officer in Annexure 7 to pay Rs. 1,45,124.32 paise as penalty for felling and converting trees in Government land illicitly from Government land for which the plots have been manipulated over Government land. On receipt of such a notice, this writ application was filed on 8-6-1983 for quashing Annexure-7 and for directing the Divisional Forest Officer to issue timber transit permit giving all facilities to the petitioner for removal of the forest produce on the scheduled land. On hearing, realisation of the amount mentioned in Annexure 7 has been stayed by this Court pending disposal of the writ application.
3. Two years after the filing of the writ application, Tahasildar has filed a counter-affidavit and the Divisional Forest Officer has filed another counter-affidavit. In the affidavit of the Tahasildar, it is asserted that the village map was manipulated by the subordinate staff at the level of Revenue Inspector, Charmal for illegal purpose and petitioner wanted to take trees standing on Government land with the help of subordinate staff.
4. In the counter-affidavit filed by the Divisional Forest Officer, the essential facts to the issue of three timber transit permits is admitted. It is asserted that he received a complaint petition alleging wrong demarcar tion. He accordingly, requested the Tahasildar on 23-6-1981 to depute the Revenue Supervisor to take up joint demarcation again with the Amin of his office on the basis of sabik mans available with settlement authorities as such map with Revenue Inspector appears to be tampered. There was a conference where Collector. Divisional Forest Officer, Subdivisional Officer and Tahasildar participated on 5-7-1982. He pointed out that there are seven such cases where trees have been felled and the converted trees are awaiting removal through timber transit permits and the contractors have already invested amounts in those cases. Accordingly, it would lead legal complication for non-issue of timber transit permits. He also pointed out that the Tahasildar had countersigned all the maps submitted to his officer after necessary checking in the field for working of leasehold plots. Tahasitdar on the other hand stated that settlement operation is going on and all the maps have been taken back. As a result, it will not be possible to verify the maps. After considering the statements of the Divisional Forest Officer and the Tahasildar, it was decided that working of recording will be taken up after receipt of the final copies from the Settlement Organisation. Tahasildar was, however, directed to take up the demarcation of the seven cases pointed out by the Divisional Forest Officer, Rairakhol with the authenticated maps, Thereafter the report was submitted which indicated that the entire plot has been manipulated over the Government land and trees have been felled from Government land. Thus, the trees having been felled from Government land, no further timber transit permit has been issued and petitioner has been directed to pay the penalty as per Annexure-7 for having felled trees from Government land.
5. Mr. B. P. Ray, learned counsel for the petitioner submitted that under the Orissa Timber and other Forest Produce Transit Rules, there is no scope for further verification once the joint verification was made and timber transit permits were issued on that basis. Accordingly petitioner ought to have been issued with permits.
In this case, there is no assertion that petitioner was ever intimated before issue of Annexure-7 that the permits are withheld because on enquiry it was found that the trees which were permitted to be felled were in Government land. It is true that royalties have been collected from petitioner. Entire process was followed when the authorities were under the impression that petitioner is a purchaser of trees from private land. There is no allegation of mala fides against any officer for not granting the timber transit permits. Divisional Forest Officer has clearly explained the circumstances under which issue of timber transit permits was withheld. When the various authorities were satisfied that trees purchased by the petitioner were from Government land, there is no scope for issue of timber transit permit treating the trees to be from private land. "Divisional Forest Officer ought to have intimated the order of refusal of further permits so that petitioner could have preferred an appeal as provided in Rule 7, Remaining silent and then issuing Annexure-7 does not speak well of the administration.
7. However, the more important question in this case is to consider whether in the facts and circumstances of this case, Divisional Forest Officer should be directed to issue timber transit permit. It is true that as ?, there was a joint verification where the Tahasildar and the Revenue Officer were satisfied that the land from which the trees are sought to be felled by the petitioner are private lands. In fact, on the basis of the joint verification report, further steps were taken and trees in the peripheri were marked and the property mark was called for from the petitioner. Added to it, he was given timber transit permit for some trees felled. When there was allegation that the land on which the trees stand are not on private land and the maps have been manipulated no further permit has been given. There is no allegation of misuse of power of mala fides against the Divisional Forest Officer, Tahasildar, Sub-Divisional Officer and Collector. If in fact, land on which the trees stand is not private land and the land belongs to Government, petitioner cannot get any title to the trees by purchase to get permission either to fell trees or to remove the same. In such circumstances, after a conference, when the Collector had directed making enquiry and on the enquiry, it was found that the maps and records have been, manipulated this Court in writ jurisdiction ought not to enter into enquiry on complicated question of fact with acanty material to give direction to the Divisional Forest Officer to issue timber transit permits on the basis of joint verification report whose basis is found by the authorities to be incorrect.
8. Mr. B. P. Ray, learned counsel for the petitioner relied upon a decision of this Court, reported in (1987) 63 Cut LT 179 (Md. Umar v. State of Orissa). In that case, on the basis of finding that trees were standing on private land which were purchased by the petitioner, a direction was given that the Timber Transit permit should be issued. Delay in the order for issue of timber transit permit was depri-cated which reads as follows :--
"The provisions of the rules show that the Divisional Forest Officer is under an obligation to grant the transit permit free of cost subject to an enquiry held in accordance with the prescribed manner. The timber is the property of the applicant and he is free to move it according to his necessity but such movement made subject to the conditions imposed under the rules. The very purpose of the rule and of the enquiry before the transit permit is granted, is apparently to make sure that the timber sought to be removed is private timber and not timber or bamboo clandestinely removed from the Government forests. The Rules are thus provisions for protection of the Government forests and is justifiable as such. The rules are never contemplated to be utilised as a means of oppression of the owners of the timber so as to keep it handing like a Democlean sword over them ready to fall at the slightest ill humour. Grant of permit under the rules must be attended with reasonable speed and procedural delay must not be of such proportion and magnitude so as to stall the grant of permit for years together. It may often be the case due to such arbitrary action, that a person, who has contracted to sell timber to third parties and commercial commitments on such contract has taken place, finds himself is an unenviable position of being saddled with heavy liabilities for the contract having become frustrated due to the more non-issue of the permit."
It was further observed :
"As the facts disclose, the department does not appear to have any reasonable excuse not to have issued the T.T. permit in favour of the petitioner....."
In the present case, however, there are cogent materials for the Divisional Forest Officer to come to a conclusion that the trees purchased are not on private land which is a reasonable excuse. Petitioner can establish in a competent forum that in fact, the trees stand on a private land and get the timber transit permit or compensation in case of any suffering on account of withholding of timber transit permit on the basis of facts to be proved in that forum.
Mr. B. P. Ray, has relied upon a decision in O.J.C. No. 3960 of 1988 decided on 28-8-1989 (Md. Umar v. State of Orissa, represented by the Secretary to Government, Forest Department, Bhubaneshwar). In this case also it was found that the petitioner was entitled to issue T. T. permit. It was observed :
"........But for reasons best known to the concerned authorities, they went on playing hide and seek with the petitioner and taking dimetrically opposite stands at different points of time. On the aforesaid premises, we have no other alternative than to hold that the petitioner in fact had applied for T. T. Permits and consequently was also entitled to felling orders which have been withheld without any justifiable reasons........"
Direction for issue of T. T. permit would depend upon the facts to be determined. Where, Court in writ jurisdiction is able to find that there is no justification or reasonable excuse to withhold T. T. permits, a direction is to be given since issue of such permit is a statutory duty of the Divisional Forest Officer. Where, however, complicated questions of title are involved and the matter requires thorough probe on facts, writ jurisdiction should not be exercised and matter is to be left to be agitated in common forums.
10. Next question does not detain us long. Annexure-7 is a notice demanding to pay penalty. No coercive action has been taken as yet for collection of the said amount. Petitioner has opportunity to explain to the Divisional Forest Officer that on the basis of his permission he felled trees in question and is not responsible in any manner for manipulation of record with the Revenue Inspector or that such records are correct. Since a penalty is being imposed attracting civil consequences, fair play demands an opportunity to the petitioner of being heard.
Accordingly, we give liberty to send a reply to Annexure-7 indicating the circumstances under which such notice of demand was not called for. On receipt of the reply, the Divisional Forest officer shall decide the question. Since the notice had been issued in the year 1982 and already eight years have passed, a reply should be given by the petitioner to the Divisional Forest officer if so advised within one month from today. In case, no reply is given within that time, Divisional Forest Officer is at liberty to take such steps in accordance with law as permissible. For one month however, Annexure-7 shall not be operative.
11. It has been asserted in the writ application that representation has been made to the Chief Conservation of Forests and the State of Orissa. There is no denial of this assertion in the counter-affidavit. It is unfortunate that representation made by citizens remain pending with the authorities without giving any importance to their grievances, However, without more details, we are not able to give any direction in the present case since Chief Conservator of Forest is not a party before us. We, however, give opportunity to the petitioner to move the authorities to whom the representation is made for disposal of such representation early.
12. While we are not inclined to issue any writ to the Divisional Forest Officer to issue Timber Transit Permit, we direct him not to proceed with Annexure-7 for one month to give opportunity to the petitioner to give a reply to the said notice.
13. In the result, writ application is allowed to the extent indicated above. There shall be no order as to costs.
Requisites for issue of writ to the opposite party No. 1 shall be filed by Monday.
V. Gopalaswamy, J.
14. I agree.