Orissa High Court
Ushakiran Mahapatra vs State Of Odisha & Ors. .......... ... on 9 April, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 15973 of 2024
Ushakiran Mahapatra ........ Petitioner(s)
Mr. Soumya Mishra, Adv.
-Versus-
State of Odisha & Ors. .......... Opposite Parties
Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
ORDER
09.04.2025 Order No.
01. 1. This matter is taken up through a hybrid arrangement.
2. Heard learned counsel for the parties.
3. The present Writ Petition has been filed by the Petitioner with the following prayer:
"It is, therefore prayed that your Lordships may graciously be pleased to admit the appeal calling upon the Opp. Parties to show cause as to why the impugned letter dated 19.02.2024 vide Annexure 21 issued by the Opposite Party No. 2 shall not be quashed/set-aside and as to why they shall not be directed to issue the Timber Transit (T.T) Permit in favour of the Petitioner;
And in the event the Opposite Parties fail to show-cause or show insufficient cause, the impugned letter dated 19.02.2024 Signature Not Verifiedvide Annexure 21 issued by the Opposite Party no.2 be Digitally Signed Signed by: LITARAM MURMU quashed/set-aside and they shall be directed to issue the Timber Designation: Personal Assistant Reason: Authentication Transit (T.T) Permit in favour of the Petitioner; Location: OHC Date: 10-Apr-2025 18:28:22 2 And may pass such other order/orders, direction/directions, as deem fit and proper;"
4. Learned counsel for the Petitioner submits that the Petitioner assails the Order No.81/3F-04/2023 dated 23.05.2022 passed by the Appellate Authority-cum-Regional Chief Conservator of Forest, Bhawanipatna Circle, Bhawanipatna dismissing the appeal and confirming the Order No.3052 dated 23.05.2022 passed by the DFO, Kalahandi, South Division rejecting the Petitioner's application under Form-III-A of the [Rule-7(a-1)] of the Odisha Timber and other Forest Produce Transit Rules, 1980.
5. Learned counsel for the Petitioner further submits that the Petitioner is the recorded owner of the land bearing Plot Nos.58, 59, 84, 66, 67, 69, 74 and 57, Khata No.17/23 of Mouza- Bishamgiri under Tahasil, Thuamul Rampur in the district of Kalahandi.
5. Learned counsel for the Petitioner further contends that the principal ground for refusal of the prayer of the Petitioner is that the land does not belong to the Petitioner, as the said land has already been sold to one vendee i.e. Mallapati Samhit. He Signature Not Verified further submits that the vendee has purchased the land from the Digitally Signed Signed by: LITARAM MURMU present Petitioner including the standing trees which has not Designation: Personal Assistant Reason: Authentication Location: OHC Date: 10-Apr-2025 18:28:22 been clearly expressed in the sale deed. The vendee has given an 3 affidavit sworn before the Notary Public, Junagarh, Kalahandi stating that he will not claim any title in respect to the uprooting of Sal trees within two years.
6. Learned counsel for the Petitioner further argues that the ground of rejection of the application of the Petitioner is that the Petitioner is not being the owner of the aforesaid land which is an objection falls in the category of hyper technicality. He further submits that Clause (a-i) under Sub-Rule (8) of Rule 7 of the Orissa Timber and other Forest Produce Transit Rules, 1980 stipulates that the application for transit permit shall be made by the owner of the plot in Form-III ( in duplicate) to the Divisional Forest Officer having jurisdiction, the same has not be purposively interpreted with what has been expressed by the Supreme Court in Santabai v. State of Bombay and Others1 and the full Bench of the High Court of Allahbad (Lucknow Bench) in the case of Baijnath v. Ramadhar2 wherein the Court has held that trees rooted in the earth are immovable property as being things attached to the earth by reason of the definition of the term 'immovable property' given in the General Clauses Act and the Registration Act, read with the definition of the Signature Not Verified expression 'attached to earth' given in the Transfer of Property Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC1 AIR 1958 SC 532 Date: 10-Apr-2025 18:28:22 2 1962 SCC Online AII 140 4 Act, standing timber is movable property by reason of its being excluded from the definition of 'immovable property' in the T.P Act as well as the Registration Act and by being expressly included within the meaning of the term 'movable property' given in the Registration Act.
7. Learned counsel for the State submits that the Petitioner should approach the DFO, Kalahandi along with the vendee with a fresh affidavit with respect to his no objection for felling of the trees.
8. In such view of the above and considering the submission made by the parties, this Court is of the view that there is no concept like standing timber, only it is the standing tree and standing trees are not movable property whereas timbers are movable property. Hence, the claim of the present Petitioner for issuance of the transit permit has been rejected on the ground that the Petitioner does not own the land any more. Since the vendee has already given the affidavit with respect to his no objection for removing the Sal trees, the DFO, Kalhandi/Opposite Party No.3 should have considered the said fact without insisting for ownership of the land. Accordingly, Signature Not Verified the Petitioner is directed to approach the DFO, Kalahandi along Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication with the vendee with a fresh affidavit in respect to the no Location: OHC Date: 10-Apr-2025 18:28:22 5 objection for felling of the trees. In such event, the DFO, Kalahandi shall consider the Petitioner's application for issuance of Timber Transit Permit in accordance with law.
8. Accordingly, the Writ Petition is disposed of.
( Dr. S.K. Panigrahi) Judge Murmu Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC Date: 10-Apr-2025 18:28:22