NIRMAL CHANDRA MAHAKUD Vs. CONSERVATOR OF FORESTS

JUDGEMENT

(1.) This is yet another instance of transit permit sought for by a person under the Orissa Timber and Other Forest Produce Transit Rules. 1980 for short 'T. T. Rules', for removal of timber purchased by him from private recorded tenants to have eluded him since 1981 in spite of his having moved this Court suceessively on two prior occasions and hence being compelled again to make a third attempt. The facts tersely stated are that the petitioner purchased the trees standing on three private recorded holdings in 1981 and in the same year made applications in Form -Ill of the T. T. Rules for issue of transit permit for removal of timber and firewood. It appears from the counter affidavit that the applications were made on 20 -1 -1981. Steps were taken for conduct of joint verification of the plots and the trees by the forest authorities as well as the revenue -authoritis.B by opposite party No. 2, the Divisional Forest Officer addressing letter to the Tahasildar, Udala to depute a revenue officer for the purpose. As there was delay in disposal of his applications for issue of transit permit, the petitioner filed OJC No. 31 of 1988 which was disposed of on 4 -2 -1988 directing opposite party No. 3 to dispose of the application within a month. The opposite party No. 2 filed an application in Court for extension of time for compliance with the order in consideration of which time was extended till the end of May, 1988. In the meantime on 8.3.1988 joint verification was made by the A.C.F., Udala and an Amin of the Tahsil Office and it is the petitioner's case that in the joint verification no discrepancy was found. The report of joint verification is Annexure -3 to the writ application which does not state any discrapancy to have been noticed by either of the officers. The report shows the plots of the respective land owners to have been demacated, the number of trees on the plots to have been enumerated and a certificate to have been given by the officers conducting the verification, i. e. the A.C.F., the Amin as also the RHTC that they shall be personally held responsible if any discrepancy would be noticed later on regarding the correctness of demarcation. Even 6o, the application of the petitioner was rejected by opposite party No. 2 on 17 -5 -1988 vide Annexure -4 saying that he had not produced authenti cated legal heir certificates of the owners, who bad sold the trees, stating that they were the. legal heirs in respect of the propertiest that he had not paid the fair price to the sellers although he had purchased from the persona belonging to scheduled caste -or scheduled 'tribe violating Rule 3 of the Orissa Protection of S.C. and S.T. (5nterost in Trees) Act, .1931 (Act 13 of 1983); the contract between the party and the sellers not to have been done properly because both the parties had not signed the conrtrat; and that under the provisions of the Transfer of Property Act, 1832 the standing trees and anything attached to earth are immovable properties and they being worth mare than Rs. l00/ - the sale of the trees required compulsory registration. The petitioner carried an appeal against the order before the Conservator of Forest but since the appeal remained undisposed of he again filed OJC No. 1838 of 1989 in which direction was given on 14 -7 -1989 to dispose of the appeal within two months. The appeal having been rejected, the present writ petition has been filed. The rejection order of the appellate authority is Annexure -5 which shows the reasons of rejection as non -production of legal hair certificates from the tenants, applicability of Act 18 of 1983; non -paymant of fair price to the tenants and non - registration of sale of the trees.

(2.) ADMITTEDLY Act 18 of 1933 cams into force on 28 -12 -1983. The purchases by the petitioner of the trees had been made prior to it. There is nothing in Act 18/83 to show that it is retrospective in operation. The Board's Rules relating to purchase of trees of scheduled caste and scheduled tribe and the procedure provided for such purchase were prospectively operative and hence any purchase made not in accordance with the provisions of that Act were not illegal and the provisions of the Act could not have bean relied upon to treat the purchase as invalid. Hence the application for transit permit was not liable to be refused on such ground. Faced with such difficulty, the learned Addl. Govt. Advocate tried to contend on the basis of the statements made in the counter affidavits that though the. application of the petitioner for transit permit was filed in 1981, yet in fact the receipts regarding the purchases were filed much later in 1988 which showed no purchase to have been actually made in 1981 and to have been made only in the year 1988. Annexure -A/2 series annexed to the counter affidavit filed on 12 -11 -1991 is sought to be pressed into service to advance the submission. Those receipts however do not show any date, much less 1988, on them. The only submission urged by the learned Addl. Government Advocate is that since the receipts show to have contained a declaration by the Ward Member in support of the purchases made by the petitioner and the requirement of obtaining the signature of the Ward Member on the receipts being only in accordance with Sec 3 of Act 18/33. the inference would be that the receipts were prepared after the Act had come into force with a view to get over its rigours. Because of such submissions, the learned Addl. Govt. Advocate was directed to produce the file relating to submission of applications by the petitioner and to file an affidavit as to whether the receipts had been filed along with the applications. In pursuance of the direction, though an affidavit was filed on 21 -11 -1991 by the Range Officer stating that the petitioner had produced the sale receipts in 1988 before the Assistant Conservator of Forest at the joint verification, yet a petition was sworn to by the very Range Officer on 29 -1 -1994 and filed in Court on 1 -3 -1994 retracting the statements in the affidavit saying the same to have been made under misconception of facts, and making the categorical statement that in fact the petitioner had filed the sale receipts as per Ext. A/2 along with his application in 1981 for grant of timber transit permit. It hence is the admitted case of the opposite parties that the petitioner had in fact filed the sale receipts along with the application for T. T. permit. The purchases being in the year 1981, the provisions of Act 18 of 1983 were not attracted. - - Once such conclusion is reached, most of the grounds taken by opposite party No. 2 or by the Conservator of Forest refusing the permit to the petitioner fail. So far as the view taken by both the officers that the purchases of the trees required registration, it is plainly misconceived in law. The application for removal of the trees was made as soon as the purchases were made. The trees were purchased only as timber and hence it was a contract in goods. That being the contention of the parties in making the sales and purchases, there was no necessity for registration The other reason cited, i. e. non -production of legal hair certificates from the tenants, is also hardly available to the opposite parties. The petitioner came with the specific case of having purchased the trees standing on the plots. The matter was enquired into at the pint verification stage. During this long period, no objection had been raised at any time by any person of the petitioners having not purchased the trees. The receipts themselves show the certificate of the Ward Member of .the. trees having been purchased from the persons who were possessing the plots. Further, the receipts had also been filed with the certificate of the Sarpanch of the sellers . being the legal heirs. The opposite parties also never received any complaint from anybody of the petitioner having not purchased the trees. For such reasons conclusion is liable to be reached that there were no cogent or valid reasons for refusing permit to the petitioner, in that view of the matter, the petition succeeds. The opposite party No. 3 is directed to issue transit permit to the petitioner in respect of the trees purchased by him within two months of receipt of the writ from this Court. AH other steps necessary to be taken for grant of permit as are provided for under the T. T. Rules are to be taken within that period. No costs. I agree.