Judgment:
P.K. Misra, J.
1. In this writ applicalion the petitioner has prayed for quashing Memo No. 2241. dt. l4-3-l996 under Annexure-10 issued by opposite party No. 4 whereunder the petitioner was directed to stop cutting of bamboos from plot No. 80 under holding No. 116 of Mouza Manpur with further direction to the Range Officer not to issue Timber Transit Permit and Cutting Order till final decision of the High Court in OJC No. 910 of 1996. The petitioner has further sought for a direction to opposite party No. 4 to issue Timber Transit Permit in respect of bamboos purchased by the petitioner in auction as highest bidder in Tousi Misc. Case Nos. 76/84 and 118/84.
2. Since the writ application relates to auction of bamboo in two separate Touzi Misc. cases, it is convenient to recount the facts separately.
In Touzi Misc. Case No. 76/84. auction was held in respect of 1250 bamboos standing on Plot No. 80 in Holding No. 1.16 on 28-6-1984 and the petitioner became highest bidder and deposited a sum of Rs. 200/- on the same day. The grievance of the petitioner is that in spite of payment of the full bid amount and in spite of several latters and reminders. Timber Transit Permit was not issued even though other formalities had been completed.
In Touzi Misc. Case No. 118/84, there was auction for 15000 bamboos standing on the very same land. Initially, the petitioner became the highest bidder for Rs. 2,015/- and deposited the said amount on the very date of auction, i.e. 18-7-1985. Subsequently, there was a direction for, re-auction and the petitioner again became the highest bidder for Rs. 4.000/- and deposited the balance amount of Rs. 1,985/- on 29-10-1986. In spile of application of the petitioner and recommendation of the Tahsildar (opposite party No. 3), Timber Transit Permit was not issued.
Subsequently, the petitioner issued a lawyer's notice in respect of the aforesaid two auctions and after receipt of such notice, joint verification was made as per reports dt. 4-6-1995, annexed as Annexures- 7 and 8, Thereafter, opposite party No. 4, the Divisional Forest Officer, issued letter dt. 12-1-1996 permitting the petitioner to convert five clumps each in respect of Government Plot No. 80/1 (Touzi Misc. Case No. 118/84) and Plot No. 80/4 (Touzi Misc. Case No. 76/84) as per Annexure-9. It appears that pursuant to the aforesaid order permitting the petitioner to convert bamboos, the petitioner started cutting bamboos. Subsequently, however, the bamboos cut by the petitioner were sei/cd and ultimately the impugned letter dt. 14-3-1996 us per Anncxurc-10 was served on the petitioner. Being aggrieved by the said direction, the petitioner has filed this writ application.
3. In the counter affidavit filed on behalf of opposite party No. 4, the Divisional Forest Officer, while admitting the factum of auction and payment by the petitioner, it has been asserted that there was some irregularity committed by the Tahsildar and only dead bamboos had been auctioned and since the report did not indicate about the nature and quality of the bamboos, it was directed to convert five clumps from each plot at randum to test harvest in order to make an assessment about the availability of number of bamboos. It was further asserted that some villagers had filed O.J.C. No. 910/96 challenging the validity of the earlier auctions and the right of the petitioner to remove the bamboos, wherein direction had been given to the competent authority (Collector, Nayagarh). to decide the entitlement of the bamboos and pursuant to the said direction of the High Court, the Collector had directed the Tahsildar by V. H. F. Message dt. 7-3-1996 to stop cutting of bamboos and to seize the bamboos if already cut and as such the order under Annexure-10 was passed by the Divisional Forest Officer on the basis of the direction received from the Collector. It is further submitted that theDivisional Forest Officer in his corrospendence with the Collector (opp. Party No. 2) has already indicated that since dead bamboos had been auctioned, there was no possibility of the survival of dead bamboos beyond a period of three years and as such the petitioner had no right to claim green bamboos standing on the dispuled plots.
No countere affidavit has been filed on behalfof opposite parlies 1 to 3.
Some of the villagers who had filed O. J. C. No. 910/96 have filed intervention petition and have contended that the bamboos had been planted and nurtured by villagers on the Gocher land and the petitioner should not be permitted to cut and remove the bamboos.
4. The entire records in Touzi Misc. Case Nos. 76/84 and 118/84 were called for and have been produced before us. We have perused the aforesaid records as well as the order passed in O. J. C. No. 910/96. For convenience, the relevant portion of the order passed in O. J. C. No. 910/96 is extracted hereunder:-
'2. The grievance of the petitioners is that opposite party No. 6 is cutting away bamboos which he could not have cut in spite of orders dated 29-10-1986 and 16-1-1987 of the Collector, Puri. It goes wilhout paying thai a person is entitled to remove such articles which from the subject matter of entitlement decided by a competent authority. If the removal is beyond such entitlement, obviously the concerned authority has to take note of it and take appropriate action. We do not express any opinion on merits.
3. The petition is disposed of.'
(The present intervenes were petitioners and the present petitioner was opposite party No. 5 in the said case).
The aforesaid order passed in O. J. C. No. 910/96 at the stage of admission does not purport to set at naught the effect of auction held in Touzi Misc. Case Nos. 76/84 and 118/84. It has merely directed the appropriate authority to consider the question of entitlement of opposite party No. 5 (the present petitioner) before issuing any Timber Transil Permit. Even without such a direction, it is axiomatic that the appropriate authority has to consider the question of right of the party before issuing Timber Transil Permit in his favour in respect of any materials as per the relevant provisions of the Orissa Timber and Other Forest Produce Transit Rules.
5. A perusal of the order sheet in Touzi Misc. Case No. 76/84 indicates that the proposal of the Revenue Inspector regarding auction of 1250 nos. of dead bamboos was accepted by orderdated 12-6-1984. The auction notice dt. 13-6-1984 which is available in the file produced also indicates that the notice was in respect of 1250 dead bamboos. It is evident that the petitioner became the highest bidder in respect of 1250 nos. of dead bamboos. It is now submitted on behalf of the opposite panics that the dead bamboos which were auctioned are no longer available as the same must have been damaged and as such no direction should be granted for issuance of Timber Transi t Permit in respect of the bamboos covered under the auction relating to Touzi Misc. Case No. 76/84. It is further submitted that in the garb of taking dead bamboos, green bamboos standing on the very same land are likely to be removed. Though the counsel for the petitioner submitted that the present stand of the opposite parties to the effect that dead bamboos had been auctioned is an after-thought, we arc not in a position to accept such submissions made on behalf of the petitioner, as the materials on record as revealed from the case records of Touzi Misc.Case No. 76/ 84 indicate that, in fact, dead bamboos had been auctioned. We accept the submission of the opposite parties to the extent that it may not be possible to identify and give permission relating to 1250 nos. of dead bamboos which had been auctioned about twelve years back. However, as the petitioner had participated in the auction on the basis of representation made by the authority and had deposited the bid amount long back, we deem it just and proper to award compensation to the petitioner instead of directing issuance of Timber Transit Permit so far as Tou/i Misc. Case No. 76/84 is concerned. Keeping in view the present price of such bamboo in the market and the fact that the petitioner has been running from pillar to post for about twelve years, we direct opposite party No. 1 to pay a sum of Rs. 5,000/-(Five thousand rupees) as compensation to the petitioner within a period of three months. This order disposes of the prayer of the petitioner so far as it relates to 1250 nos. of bamboos in Touzi Misc. Case No. 76/84.
6. So far as Touzi Misc. Case No. 118/84 is concerned, the rather stands on a different footing. In the report of the Revenue Inspector, it was indicated that the bamboos had dired up and in the order dt. 13-12-1984 it was so indicated. However, there is no clear order of the Tahsildar that the bamboos had died. In fact, in the auction notice dt. 1-10-1986 which is available at page 10 of the relevant file of Touzi Misc. Case No. 118/84. there is no indication that the bamboos were dead. Similarly in another auction notice dt. 17-9-1986. there is no indication that the bambooswere dead. As per the letter of the Divisional Forest Officer to the Collector, which has been produced on behalf of the opposite parties, it is apparent that the price of bamboo sold by the Forest Corporation (evidently before cutting and transportion) was Rs. 0.34 paise per piece at the relevant time. In the auction which was held pursuant to notice dt. 17-9-1986 and 1-10-1986, the petitioner became highest bidder at Rs. 4,000/- which approximately tallies with the official price of the Forest Corporation. Subsequent joint verification held in 1995 indicates the availability of 13,500 nos. of bamboos. Since there is no definite material that dead bamboos had been auctioned, it is apparent that matured bamboos were auctioned. In the aforesaid background, the stand of the opposite parties that the bamboos sold in 1986 arc no longer available cannot be accepted. It is evident from the counter affidavit of the opposite parlies that after getting the cutting order, the petitioner has cut 3000 nos. of bamboos. The opposite parties are directed to issue Timber Transit Permit so far as the bamboos which have been cut within a period of one month from the date of communication of the order. Since as per the subsequent joint verification report 13,500 bamboos were available, it is further directed that the opposite parties should take steps to issue Timber Transit Permit in respect of the balance 10.500 nos. of bamboos relating to Touzi Misc. Case. No. 118/84 within a period of three months.
7. The writ application is accordingly allowed as indicated above. There will, however, be no order as to costs.
D.M. Patnaik, J.
8. I agree.