ORDER
Chandrakantaraj Urs, J.
1. This matter coming up for preliminary hearing after notice, is disposed of by the following order.
2. The learned Counsel for the petitioner as well as the learned Government Pleader for the respondents have been heard. Despite chances given, the respondents have failed to file statement of objections. Therefore, this Court must proceed as if the allegations made by the petitioner are true on account of non-traverse.
3. Petitioner claims to be the owner of S.No. 53 of Yeilapur Village on the outskirts of Yellapura Town, being an agriculturist. In the said S.No. there was certain tree growth and he wanted to extend the arable land and therefore he wanted to cut and remove the trees in order to bring the land covered by the tree growth under plough. In that behalf he made an application to the Tree Officer under Section 8 of the Karnataka Preservation of Trees Act, 1976. That application was made on 30-4-1986. But, no action was taken by the Tree Officer having jurisdiction. The Tree Officer having jurisdiction is the second respondent-Deputy Conservator of Forests, Yellapura Division, Yellapura, Uttar Kannada District.
4. The petitioner waited for nearly three years before he issued a notice informing the authorities that he was proceeding to cut the trees having regard to provision made in Clause (ii) of Sub-section (4) of Section 8 of the Act. Sub-section (4) of Section 8 reads as follows:
'(4) If the Tree Officer fails to inform the applicant of his decision -
(i) in the case of an application in respect of a tree in an urban area and in a rural area of the kind specified in Schedule II, within sixty days; and
(ii) in the case of an application in respect of a tree in a rural area of the kind specified in Schedule I, within one year from the date of receipt of the application by him or, if the receipt of the application has been acknowledged by him from the date of such acknowledgement , such permission shall be deemed to have been granted.'
That the application was received is not in dispute. Though some submissions made in respect of the application by the learned Government Pleader, shall be noticed at the appropriate stage of this order.
5. The petitioner has averred that pursuant to the application, enquiry was conducted by the officials of the Forest Department and as many as 97 trees were marked for cutting. Despite that, no order having been issued within the period commended by the legislature petitioner was entitled to take advantage of the provision of law and cut the trees as if he had been given permission in view of Clause (ii) of Sub-section (4) of Section 8 of the Act. His grievance began when he wanted to transport the trees so felled by him. The second respondent has refused to issue passes for transportation inter alia on the ground that they have been cut without permission despite refusal order dated 23-6-1989.
6. The question therefore which falls for determination is whether the petitioner must be given the benefit of Sub-section (4) of Section 8 of the Act. It is undisputed that on 30-4-1986 or soon thereafter application had been received, because there is no denial by the State in that behalf. The only thing stated by the learned Government Pleader in this behalf orally in this Court in that the application was defective and not in conformity with Section 8 and therefore no action was taken. Nor records are placed before the Court to demonstrate this fact. Nor is it denied in any statement of objections filed in this Court. As earlier noticed, an enquiry was conducted in proceedings No. PLG/GFT/MR-11-87-88. Such proceedings as alleged could not have been initiated if the application was defective. The Court expects, as normal behaviour by an Officer of the standing of the second respondent, to promptly return the application for rectifying the short comings or errors which makes the application one not in conformity with Section 8. Instead, the Court does not expect such Officer to initiate enquiry and mark the trees for felling. By that conduct, this Court may safety draw an inference that in order to cover up the laches allowing the application by operation of law, the theory of defective application is put forward. It cannot be held to be a genuine defence to refuse transport passes.
7. Identical questions arose for consideration in Droupadi v. State and Anr., Writ Petition No. 9174/1986 disposed of on 10th November 1986. In that decision, this Court explained the effect of deemed grant of permission. The Department has come to accept that decision. Therefore, it cannot now take a stand that on account of the defect in the application, permission is refused. If, beyond the period specified in Clause (ii) of Sub-section (4) of Section 8 of the Act, no order is passed within one year, on the application whether defective or not, permission is deemed to have been granted by operation of law. That position cannot be altered by any subsequent stand taken by the Department.
8. In that view of the matter, the second respondent is not justified in withholding the transport permits causing considerable loss to the petitioner as the trees cut are exposed to the vagaries of whether and there-fore may deteriorate in value.
9. In that view of the matter, the petitioner is liable to succeed in getting a Mandamus directing the respondents to issue transit passes to transport the cut trees.
10. Rule will accordingly issue and be made a absolute.