ORDER
1. This writ petition is filed for a writ of mandamus or any other appropriate writ or order directing the respondent to return/ release the Bank guarantee of Rs.70,800/- and Rs.1,08,000/- of State Bank of India, Nirmal and also directing the respondent to return the security deposit of Rs.3,000/- and Rs.40,000/-deposited by the petitioners through their GPA Holder.
2. In the affidavit, the petitioners stated that they are the owners and pattadars of the land bearing Sy. Nos.1,2,3 and 4 situated inLonkapadu village of Mamada Mandal and the lands are classified as 'Agricultural Dry Patta Lands' as per the proceedings of the Divisional Forest Officer, Nirmal in No.B/ 853/91, dated 11-10-1991. When the petitioners applied for permission for felling the trees, existing in the said land bearing Sy. Nos.1 to 4, the Conservator of Forest, Adilabad Circle vide order dated 17-6-1992 accorded permission to fell the trees in the said land covering an extent of Ac.30.45 cents with certain conditions that the petitioners should keep security deposit of Rs.3,000/- with Divisional Forest Officer and the transportation of the same should be completed within sixty days etc. The petitioners are 25 in number and accordingly, the Divisional Forest Officer ultimately issued a notice to deposit Rs.70,800/-towards deposit for regeneration charges on 20-7-1992 and accordingly, they have deposited. It is further stated that the lands being patta lands, no regeneration charges need be paid. However, the amount was paid under the threat that the petitioners would be permitted only on their undertaking to deposit the said amount. In these circumstances, the General Power of Attorney holder for all the 25 petitioners deposited an amount of Rs.70,800/- with the State Bank of India, Nirmal branch. But there is no legal or statutory power with the respondents, to demand or collect the regeneration charges since the lands are the patta lands and not a forest land. It is further stated that the respondent insisted that unless the regeneration charges arc paid or deposited, no permission would be given to them to fell the trees. Hence, they have given an undertaking as demanded by the officers, besides making security deposit of Rs.3,000/- in Divisional Forest Office, Nirmal and it was only in those circumstances, the said security deposit and payments were made and Bank guarantee has been executed. But the respondent had no authority to get the security deposit of Rs.40,000/- nor Bank guarantee for Pvs. 1,08,000/-, the petitioners arc entitled for the return of the Bank guarantee and refund of the security deposit of Rs.3,000/-and Rs.40,000/-, deposited by tte GPA Holderon behalf of the petitioners. Hence, this Hon'ble Court may be pleased to issue necessary directions.
3. A detailed counter is filed by the respondent denying the allegations made by the petitioners. It is stated that the respondent did not threaten the petitioners for depositing regeneration charges and security deposits and in fact respondent acted as per the condition imposed by the Conservator of Forest, Adilabad in Ref No.6191/93-S1, dated 3-5-1993, while granting permission to the petitioners for felling the trees and accordingly, the amounts have been deposited. The petitioners deposited the same long back in 1992, but after a lapse of nearly five years, now they are claiming the deposits and the same illegal. If the conditions imposed by the Conservator of Forests were not acceptable, they should have opposed the same. But they never protested, nor they filed any writ petition challenging the same in the year 1992 itself All these conditions are imposed by the Conservator of Forests and after knowing those conditions only the petitioners have deposited and sought the permission for felling the trees. In these circumstances, the petitioners could not have filed the present writ petition. At any rate, there is no cause of action to file the present writ petition, hi feet the GPA holder while seeking permission to fell trees, agreed for regenerating the area and as a security for the same, he made security deposits. But the GPA holder failed to abide by the said conditions, imposed for felling the trees and he failed to regenerate the area, and in case of M. Chinnaiah, already there is a recommendation to forfeit the regeneration charges deposited by him. Thus having failed to abide by the conditions agreed, the petitioners cannot be allowed to take shelter under this writ petition. The learned Counsel for the respondent further submitted that at any rate, the present claim for refund of the amount deposited etc., is barred by time, since such deposits were made only in the year 1992 and the writ petition is filed nearly after five years and as such the writ petition is liable to be dismissed not only on the ground of limitation, but also on the ground of latches. He furthercontended that the petitioners are estopped from claiming refund of the amounts so deposited, having taken advantage of the order and they cannot be permitted to approbate or reprobate at the same time. He further submitted that there is neither equity nor justice in their favour and the writ petition is liable to be dismissed.
4. To appreciate the rival contentions, I have to note a few relevant provisions of the Andhra Pradesh Forest Act, 1967 (in short 'the Act'). Chapter III-A of the Act is the relevant chapter, for the purpose of consideration of the present case. The title of the chapter itself is 'Preservation of Private Forests'. For the purpose of this chapter Section 28-A(a) defines the 'Forest' as under:
''Forest' includes waste or communal land containing tree growth and shrubs, pasture land and any odier class of land declared, by the Government in this behalf by notification in the Andhra Pradesh Gazette, to be forest.'
In the said section, even the word 'owner' has been defined as under:
''owner' in relation to a forest includes a mortgagee, lessee or other person having right to possession and enjoyment of the forest.'
Section 28-B provides as under:
'Preservation of private forests :--(1)(a) No owner of any forest shall, without the previous sanction of the District Collector sell, mortgage, lease or otherwise alienate the whole or any portion of the forest or the forest produce:
(Provided that any Power of Attorney or Authority letter or Bond, or similar Deed executed or any contract licence or any odier transaction entered into before or after die 1st day of January, 1970 by a land owner in favour of or within a person to act on his behalf or to do any job under this Chapter or rules made thereunder shallbe null and void) (Inserted by the notification issued with G.O. Ms. No.871, F&RD;, dated 17-11-1977 in exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the 5di schedule to the Constitution of India, the Governor of A.P. hereby directs that the A.P. Forest Act, 1967 (A.P. Act 1 of 1967) shall apply to the Scheduled Areas in the State of A.P., subject to die modifications (as contained in Sections 28-A to 28-G).
(b) Any alienation, made in contravention of clause (a), shall be null and void.
(2) No owner of any forest (die words 'and no person claiming under him, whether by virtue of a contract, licence, or any odier transaction entered into either before on after the 1st day of January, 1970 or any other person'' omitted by ibid) shall, without the previous permission of die District Collector, cut-trees or do any act likely to denude the forest or diminish its utility as a forest:
Provided that nothing in this sub-section shall apply to the removal of dead or fallen trees or to do anything for the usual or customary domestic purposes or for making agricultural implements.
(Provided further that no such permission shall be granted in a year to cut trees of the value exceeding Rs.5,000/- unless the District Collector is satisfied that die value of the trees proposed to be cut exceeding die said limit it is necessary to meet urgent expenses of such owner.) (Added by G.O. Ms. No.210, EFES&T; (For III) dated 20-7-1988, published in A.P. Gazette, Part I, dated 1-9-1988 at page 688).
(3) Notwithstanding anything in subsection (1) or sub-section (2), the Government may exempt any forest or class of forests or class of trees grown therein from all or any of the provisions of this section.'
From the above provisions it is clear that the authorities are invested with the power to preserve even the private forests. The definition'forests' given under Section 28-A(a) includes not only waste or communal land containing trees growth and shrubs, pasture land and any other class of land declared by the notification as forest and, under Section 28-B, no owner of any forest land shall, without previous sanction of the District Collector, sell, mortgage, lease or otherwise alienate the whole or any portion of the forest or the forest produce. Clause 28-B(1)(b) further provides that any alienation, made in contravention of clause (a), shall be null and void. In addition to that clause (2) of the said section further provides that no owner of any forest shall without the previous permission of the District Collector, cut-trees or do any act likely to denude the forest or diminish the utility as a forest. However, the proviso further clarifies that nothing in this sub-section shall apply to the removal of dead or fallen trees or to do anything for the usual or customary domestic purposes or for making agricultural implements etc. The second proviso further provides that no such permission shall be granted to ait trees of the value exceeding Rs.5,000/- unless the District Collector is satisfied that the value of the trees proposed to be cut exceeding the said limit is necessary to meet urgent expenses of such owner. All these provisions clearly indicate that the Act intends even to preserve private forests situated in private lands. Section 28-D further provides as under:
'Power to prohibit or regulate certain acts :--If, in opinion of the Government, it is necessary for the preservation of a forest or forests, they may, by notification in the Andhra Pradesh Gazette,
(i) prohibit or regulate the doing of any act likely to be detrimental to the preservation of such forest or forests;
(ii) regulate the exercise of customary or prescriptive rights in such forest or forests.'
Even under the above section, the Government by notification prohibit or regulate the doing of any act likely to be detrimental to thepreservation of such forest or forests and it can also regulate the exercise of customary or prescriptive rights in such forest or forests. Section 28-E provides penalties for contravention of Sections 28-B or 28-D and whoever contravenes the provisions of subsection (1) or sub-section (2) of Section 28-B or any of the terms of a notification under Section 28-D shall be punished with imprisonment which may extend to two years or with fine which may extend to five thousand rupees or both. From this it is clear that any violation of any of the provisions of the notification issued by the Government is made punishable. In addition to that under Section 28-G, the Government has been empowered to make the rules for carrying out the purpose of this chapter and accordingly the Andhra Pradesh Preservation of Private Forest Rules, 1978 have been framed. Rule 8 of these rules provides as under:
'8(1) Where permission is granted, the cutting and transportation and sale of specified trees shall be done by the Divisional Forest Officer departmentally in such manner as may be specified in an order by the State Government.
(2) The amount of consideration payable to the land owner after deducting the amount actually incurred for felling, transport and other incidental charges and also the amount required to fully regenerate the area as specified by the State Government shall be deposited by the Divisional Forest Officer in a Commercial Bank or a Co-operative Bank in a joint account of the land owner and the Project Officer, Integrated Tribal Development Agency concerned or such other officer authorised by the District Collector to be operated jointly by both of them.'
From the above rule it is clear that a permission for cutting and transportation of trees in private forests could be granted on depositing the amount required to fully regenerate the area and the said amount shall be deposited by the Divisional Forest Officer in a CommercialBank or a Co-operative Bank. But the learned Counsel for the petitioners contended that these provisions do not apply in view of the fact that the lands of the petitioners are private lands and they are not notified as forest lands in terms of Section 2-8-A(a). Therefore, neither-the provisions of Chapter III-A nor the rules framed thereunder shall apply to the lands of the petitioners. But the contention cannot be accepted for more than one reason. The Hon'blc Supreme Court in a recent judgment reported in T.N. Govardhan Thirumulkpad v. Union of India, AIR 1997 SC 1228, has ruled that the word 'forest' found under Forest Conservation Act, 1980 should be understood in its dictionary meaning. The Hon'ble Supreme Court observed as under:
'The word 'forest' must be understood according to its dictionary meaning. This description covers all statutory recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act, The term 'forest land', occurring in Section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambika Quarry Works v. State of Gujarat, : [1987]1SCR562 ; Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp. (1) SCC 504; AIR 1989 SC 594, and recently in the order dated 29th November, 1996 in WP (C) No.749/95 (Supreme Court Monitoring Committee v. Mussorie-Dehradun Development Authority). The earlier decision of this Court in State of Bihar v.Banshiram Modi, : AIR1985SC814 , has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority,'After giving a wider interpretation to the word 'forest' as above, the Hon'blc Supreme Court in paragraph 6 further directed as under:'The earlier orders made in these matters shall be read, modified wherever necessary to this extent. This order is to continue, until further orders. This order will operate and be complied with by all concerned, notwithstanding any order at variance, made or which may be made hereafter, by any authority, including the Central or any State Government or any Court (including High Court) or Tribunal.'
From the above judgment, it is clear that the word 'forest' has got to be understood in a wider sense covering all the statutory notified forests and recorded forests, but also the forests as understood according to the dictionary meaning, 'irrespective of the ownership or classification thereof. From this it follows that Forest Conservation Act not only regulates the forests as recorded in the Government records, but also the forests as understood as per its dictionary meaning, even existing in private land. The Supreme Court further directed all the concerned, that the order contained in this judgment shall operate and shall be complied with notwithstanding with any order contrary to it. Further the judgment has directed both the Central and State Governments, including the High Courts and Tribunals to comply with the same.
5. In another subsequent ruling reported. in Samatha v. State of Andhra Pradesh, : AIR1997SC3297 , the Hon'ble Supreme Court further clarified that the expression 'forest land' not only includes preserved forests, but itshould be given extended meaning, to cover track or land covered with trees, shrubs, vegetation and undergrowth intermingled with trees with pastures be it of natural growth or man-made fore station. At paragraph 124, the Hon'ble Supreme Court has further observed that the Forest Act protects the forest land or reserved forest, or prevents deforestation and encourages forestation and taking steps necessary to preserve ecology. The Hon'ble Supreme Court reminded the citizens of the country their fundamental duty to preserve the forests as under :
'Trees are friends to mankind and forests are inevitable necessity for human existence, healthy living and the civilisation to thribe and flourish. The need of protection and preservation of forests is fundamental duty of every citizen and all persons in comprehensive sense, i.e., juristic as well. The problem of forest preservation and protection was no more to be separated from the life style of tribals. The approach required is shift from the dependence on law and ccolativc implementation to dependence on the conscious and voluntary participation of all persons. Maintenance of ecology is the primary duty of the State to prevent any further degradation of the ecology and environment and equally is the duty of every citizen. All persons conjointly should allow regeneration of forest as an essential step for healthy life.'
In paragraph 233, the Hon'ble Supreme Court further ruled that the term 'forest land' occurring in Section 2 of the Forest Protection Act will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. Thus, it is the fundamental duty of the citizens to protect the forests of all types whether private or public notified or not if a particular area is a forest even in ordinary sense of the term as defined by the dictionaries. Applying the above provisions of law and also the principles enunciated by the Hon'ble Supreme Court, now f proceed to examine the present case andalso the contentions urged by the learned Counsel for the petitioners.
6. From the proceedings of the Divisional Forest Officer, Ninnal dated 23-7-1992, I find that the land in Sy.Nos.1 to 4 of Lonkapaddu village, Mamada Mandal, has been got inspected and surveyed and the trees standing thereon are enumerated through the Conservator of Forests, Adilabad and accordingly, the pattadars has been given permission to fell 456 Teak Timber, 408 non-teak timber and 10 fuel load and these trees were standing within an area of Ac.31.05 in Sy.Nos.l to 4. From this it follows that this entire area of 31.05 acres had in all 456 teak timber trees, 408 non-teak timber trees and 10 fuel load and other trees. From this discription, it is clear that the area in which permission was granted to the petitioners to cut and remove the trees was a forest area. This area may not have been registered as forest area or recorded as forest, but still it is forest in the dictionary meaning. The Hon'ble Supreme Court has ruled in the decisions referred to 1 and 2 supra that the word 'forest' can also be taken as 'forest' in its dictionary meaning. In the decision referred to supra, the Hon'ble Supreme Court clearly stated that the term 'forest land' occurring in Section 2 of the Forest Conservation Act, 1980 will not only include 'forest' as understood in its dictionary sense, but also an area recorded as forest in the Government records, irrespective of the ownership. Therefore, the land in Sy.Nos. 1 to 4 measuring 31.05 acres having 456 teak timber trees, 408 non-teak timber trees and 10 fuel load trees would definitely constitute a forest. The petitioners have been permitted, only because it is a private forest, on depositing regeneration charges. But if it were to be a public forest, they could not be permitted to cut and remove even a single tree. Under Section 28-b of the Act, no permission could be granted to cut the trees or do any act likely to denude the forest or diminish its utility as a forest However, an exception is created under Section 28-B(2) proviso that for immediate domestic need and customary need likepreparation of cart, plough etc., however, such permission cannot be granted if the value of trees to be felled exceeds Rs.5,000/-, unless the District Collector is satisfied that it would be necessary to meet the urgent expenses of such owner. Under Section 28-D of the Act, the Government could also issue necessary notifications prohibiting or regulating the doing of any act likely to be detrimental to the preservation of such forest or forests and it can also regulate the exercise of customary or prescriptive rights of such forest or forests. By exercising this power only, the Government has been issuing notifications from time to time and one such notification is dated 3-5-1991 in Ref. No.5849/89-G3, issued by the Chief Conservator of Forest, Andhra Pradesh, Hyderabad. The said notification reads as under:
'Government of Andhra PradeshForest Department.Ref.No.5849/S9-G3 Office of the Prl.ChiefDated 3-5-1991 Conservator of ForestsA.P., Hyderabad.Dr. K. Kesava Reddy, IFS,Prl. Chief Conservator of Forests.Sub :--A.P. Forest Produce Transit Rules,1970 - Issue of transit permits forremoval of Forest Produce from pattalands - Collection of Regenerationdeposit, if the lands are classified asforests in revenue records - Revisedinstructions issued regarding.Ref :--CircuIar instructions of this office videRef.No.5849/89-G3, dated 16-4-1990.In the circular instructions cited above, in clause (v) of paragraph 2 of above reference, in respect of lands classified as 'forests' in village records detailed guidelines have been issued directing the Divisional Forest Officers to call upon the applicants of patta lands, seeking felling permission, to deposit 1/3 rd of the value of Forest produce existing on patta lands inhis favour (Divisional Forest Officer) as regeneration deposit.
The amount of Regeneration deposit, so fixed in the above reference has been questioned on several aspects and certain judicial pronouncements have also come in this regard in recent times. Therefore, the matter has been examined in the light of the above and keeping the guidelines issued by the Government of India under Forest (Conservation) Act, 1980, clause (v) of paragraph 2 of the circular instructions has been accordingly modified and substituted with the following, for immediate compliance.
'(v) The Divisional Forest Officer should call on the applicant to deposit a sum equivalent to the cost of raising nursery, planting the felled area and maintenance for a period of 5 years, calculated at the prevailing Forest Schedule of rates in force in the area where the lands of pattadar are situated, in his favour as 'Regeneration Deposit'. The applicant should also furnish an undertaking that he would undertake the regeneration in the patta land after the existing growth is removed, and in case of his failure to do so, he will permit the Forest Department to regenerate the area by utilising the regeneration deposit.'
The circular instructions issued earlier vide reference No.5849/89-G3, dated 164-90 would be continued and shall be in vogue with the modification to the extent as indicated above in respect of fixing of Regeneration Deposit.
All the Field Officers are requested to comply these instructions and acknowledge the receipt of these instructions. Sd/-Dr. K. Kesava Reddy, Prl. Chief Conservator of Forests.'
Precisely by exercising this power under the above notification only, the petitioners have been permitted to cut 456 teak timber trees, 408 non-teak timber trees and 10 fuel load trees, on making regeneration deposit. Having taken advantage of the said notification and after having cut the trees, now the petitioners cannot set up a plea that the Government is not entitled to collect the regeneration charges. From the said notification in Ref. No.5849/ 89-G3, dated 3-5-1991, referred to above, it is clear that this regeneration deposit is a sum equivalent to the cost of raising nursery, planting and felled area and maintenance for a period of 5 years, calculated at the prevailing Forest Schedule of rates in force in die area where the lands of pattadar are situated. This is in the form of fees for regenerating the trees, if the owner decides to cut the trees. In fact, as per Section 28-B of the Act, the petitioners could not have been permitted to cut 456 teak timber trees, 408 non-teak timber trees and 10 fuel load trees, since they have not made out any case of necessity for cutting all these trees for domestic need. However, it is too late to find fault with the order permitting them to cut so many trees after a period of five years. Be that as it may. The fact remains that the petitioners have been permitted to cut trees as stated above, only on their making regenerating deposits in terms of the notification dated 3-5-1991, as extracted above. Therefore, the petitioners cannot now seek for refund of the regeneration charges and other security furnished by them at this stage. However, the Counsel appearing for the petitioner brought to my notice a judgment of the learned single Judge of this Court dated 18-6-1996 in WP No.5157/1996, contending that in similar circumstances, this Court directed refund of the regeneration charges. In the said judgment, the learned single Judge after observing that, as per the report of the Mandal Revenue Officer, the land in question (therein) was not included in the forest, held that the land was not a forest land and the 1st respondent could not insist for regeneration of the trees in lieu of the cutting of the existing trees. But the said judgment cannot be takento have laid down correct proposition of law, in view of the two judgments of the Supreme Court cited 1 and 2 supra. The Hon'ble Supreme Court has ruled that even if there is a forest not recorded as forest, but otherwise if it is forest in the dictionary sense of the term, such forest also would be covered by the definition of 'forest' under Forest Conservation Act. The Hon'ble Supreme Court further stated that it should be the concern of every one to preserve the forest and ecology. Since, I am bound by the judgments of the Supreme Court, the contention of the learned Counsel for the petitioners relying on the judgment of the learned single Judge of this Court, cannot be accepted. However, the learned Counsel for the petitioners relied upon another judgment of the Division Bench of this Court dated 9-3-1995 in Writ Appeal No.525/1991 The said judgment also proceeded on the basis that, the land from which the timber was sought to be removed, was not classified as 'forest' and as such the Government guidelines would not apply and it also further observed that Section 21 of the Forest Conservation Act, 1980 does not speak of the levy of regeneration charges, but only prohibits the State Government from passing any order directing the use of any forest land or any portion thereof for any non-forest purposes. The Division Bench further observed that permitting or granting of permission on payment of regeneration fee, docs not appear from the Forest Conservation Act. Having observed that, the Division Bench stated as under:
'At any rate, we leave such question open since we have not been addressed on that account and confine ourselves to the fact that the land itself having not been classified as a forest land, the provisions of Forest (Conservation) Act, 1980 would have no application to it.'
From the above observation it is clear that Division Bench of this Court did not intend to lay down any law in this behalf and kept that question open, and it proceeded on the ground that the land in question therein was not forest land, since it was not classified as forest landas per the provisions of the Forest Conservation Act, 1980. As I have stated above, the Hon'ble Supreme Court has ruled in unequivocal terms that the words 'forest' or 'forest land' under Forest Conservation Act, includes not only the recorded forest, but also forest in an ordinary dictionary sense of term, even if it is under private ownership. In view of the judgment of the Supreme Court, I have to take that even the judgment rendered by the Division Bench of this Court dated 9-3-1995 in Writ Appeal No.525/1991 is no more a good law. In view of the above circumstances, I do not find any merits in the contention of the learned Counsel for the petitioners that the petitioners are entitled to refund of the regeneration deposits made by them and other security furnished by them.
7. The learned Government Pleader for Forests submitted that even otherwise the claim now made by the petitioners would be barred by time. In support of his contentions, he relied upon the judgment of the Supreme Court reported in Mafatlal Industries Ltd. v. Union of India, : 1997(89)ELT247(SC) . He further elaborated his arguments by contending that in the instant case, the petitioners arc seeking refund of the regenerating charges already deposited by them as a condition precedent for permitting them to cut the trees standing on their lands only on the ground that in similar circumstances, a learned single Judge of this Court in WP No.5157/1996 directed for refund of such regeneration charges collected from other persons who were also permitted to cut trees. He submitted that the petitioners cannot take advantage of an order in some other case. So far as the petitioners are concerned, their claim would be barred by time in tenns of Section 17(1)(c) of the Limitation Act, 1963. On the other hand, the learned Counsel for the petitioners contended that when the amount is collected and paid under mistake of law, the petitioners would be entitled for the refund of the same. At any rate, their claim is not barred by time in terms of Section 17(1)(c) of the Limitation Act. Therefore, the petitioners cannot be non-suited on the basis of limitation.
8. In order to appreciate this contention, I have to note the allegations made by the petitioners in paragraph No.6 of their affidavit, which reads as under :
'It is humbly submitted that the respondent threatened to withhold permission to fell the trees in the above patta unless security deposit of Rs.40,000/- and regenerating charges are paid, though as per rules and the decided cases of High Court, such as the decision dated 18-6-1996 in WP No.5157/1996. The petitioners complied with the demand of respondent, though they are not legally bound to pay or give guarantee for regeneration charges in respect of patta lands. Further, if the land is not forest land, the respondent has no right to insist for regeneration charges. But, the petitioners were forced to comply with the demand under the pain of denial of permission. Hence, the petitioners made security deposit of Rs.40,000/- in Division Forest Office, Nirmal and gave Bank guarantee to the tune of Rs.1,08,000/- in SBI Nirmal, for regeneration charges. The aforesaid acts of the petitioners were not voluntary but the outcome of pressure and under influence exercised by the respondent who by reason of the office held by him was undoubtedly in the position to dominate us.'
From the above pleading, it is clear that the petitioners paid the regeneration charges as demanded by the forest officials. But they say that they made such deposit only because the permission could have been refused to them and as such, such deposits was made under force and threat and not voluntarily. In paragraph No.2 of their affidavit they stated that as per the letter of the Conservator of Forest, Adilabad circle dated 17-6-1992, and also a notice issued by the Divisional Forest Officer, they made such deposit on 20-7-1992. In paragraph No.3 they further stated that they made such deposit under protest. But in the counter, this allegation that they made the deposit under protest, is denied. From these pleadings, one thing is certain thatthe petitioners made the deposit on 20-7-1992. But it appears that, they filed this writ petition only on the basis of the judgment of the learned single Judge of this Court dated 18-6-1996 in WP No.5157/1996. It is not specifically stated that they discovered this mistake only when they noticed the said judgment. But it is their specific case that even at the time of making deposit itself, they protested, on the ground that the authorities have no power to insist upon such regeneration charges. In my opinion from these allegations made in writ petition it is clear that as on the date they made the deposit on 20-7-1992, they know that such a deposit was not in accordance with law. At any rate, they did not challenge those proceedings by way of a writ petition before this Court immediately. After waiting for nearly five years, they filed the writ petition only on 16-7-1997. In this view of the matter, the writ petition is liable to be dismissed on the ground of latches. In similar circumstances, when a litigant sought the refund of excess duty collected under mistake of law, the Hon'ble Supreme Court in the decision cited supra, ruled as under :
'(iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well-establishedprinciples of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963 has no application to such a claim for refund.''
In view of the above law declared by the Supreme Court, I have to uphold the contention of the Government Pleader for Forest and hold that petitioners would not be entitled for refund of the regeneration cliarges deposited by them, assuming for die sake of argument that they deposited under mistake of law. Viewed from any angle, I find that absolutely there are no merits in the writ petition.
9. Before parting with the case, I must notice that preservation of the forests and ecology is now made a fundamental duty by virtue of Article 51A of the Constitution of India. The Hon'ble Supreme Court in the decision cited supra also emphasised such duty of the citizens. Though these fundamental duties are not enforceable, nevertheless they are the duties, which the citizens shall be conscious of. Therefore, it is the duty of every citizen to regenerate the forests or make the regeneration deposits with the concerned officials if he is permitted to cut the trees for his domestic purposes. If the petitioners have made such regeneration deposit in discharge of their fundamental duty under Article 51A of the Constitution, they cannot now set up a plea that such deposit was made under mistake of law. Having taking the advantage of the order permitting them to cut the trees, their present stand would be contrary to the principles of estoppel. It is high time that the citizens should be conscious not only their fundamental rights, but also their fundamental duties enshrined in the Constitution. For the above reasons, in my considered opinion, the petitioners are not entitled for refund of the regeneration deposits and other security furnished by them in the year 1992. Accordingly, I pass the order as under :
Writ petition is dismissed. But in the circumstances without costs.