B. M. CHENNAPPA v. DIVL. FOREST OFFICER, S. COORG — 1980 DIGILAW 296 (KAR)

N. D. VENKATESH, J. ( 1 ) BOTH these petitions had been posted for hearing re-rule. Since the learned counsel for petitioners and the learned government Advocate appearing for respondents agreed to argue the matters on merits, they were heard accordingly. ( 2 ) SINCE common questions of law and facts are involved in these cases they were clubbed and heard together. ( 3 ) THE 1st petitioner in WP. No. 17056 of 1980 and the petitioner in WP. No. 7938 of 1980 own some lands in coorg District. There is standing timber in the said lands. Both these petitioners claim that the lands in question are "redeemed sagu lands. " Under the Coorg revenue Law if the value of the timber had been paid to the Govt. at the time of grant of land that land would be classified as "a redeemed" one. In proof of the fact that the lands in question are redeemed lands the petitioners place reliance on the entries made in the record of rights pertaining to these survey numbers. The certified extracts produced along with the petitions (Annexures A, B and C) do describe these lands as redeemed ones. ( 4 ) UNDER the Karnataka Forest Rules, 1969 (the Rules) to transport or move any forest produce "into or from or within the State of Karnataka" a pass is required to be obtained (vide Rule 144), to obtain such a pass an application is required to be made either to the Range forest Officer or to the Divisional Forest officer as provided under Rule 146 (1) of the Rules. ( 5 ) THE petitioners state that, seeking such passes to remove their forest produce from the lands in question, they had applied, under Rule 146 (1), to the respective Divisional Forest Officers (the 1st respondent in each case ). They further say that, since these Divisional Forest officers had not passed any orders within the time stipulated in Rule 146 (3), they had preferred appeals to the Conservator of Forests (2nd respondent in both the petitions ). They further say that, since these Divisional Forest officers had not passed any orders within the time stipulated in Rule 146 (3), they had preferred appeals to the Conservator of Forests (2nd respondent in both the petitions ). The complaint of the petitioners in these cases is that the 2nd respondent had not passed any orders on the appeals preferred by them and pending before him and, therefore, this Court should issue a writ of mandamus directing him, and if need be for the 1st respondent in each case, to issue permits or passes to them to cut and remove the trees standing on the lands in question. ( 6 ) SUB-RULES (2) and (3) of the rule 146 of the Rules which are relevant for our purpose read as follows :"146. (1) (a) Application for pass :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) On receipt of the application, the Range Forest Officer, or the divisional Forest Offiicer, as the case may be, after such enquiry as he deems fit, if satisfied that the information furnished in the application is correct and the applicant is entitled for a pass, shall grant a pass. No order refusing the application shall be made unless the applicant is given an opportunity of being heard in the matter and reasons for the refusal are stated in writing in the Order. (3) If no orders are passed refusing or granting the pass asked for within six weeks of the receipt of the application and in all cases in which the Divisional Forest Officer or the range Forest Officer refuses to grant the pass, the applicant shall have the right of an appeal within 90 days from the date of the refusal to the Conservator of Forests whose orders shall be final. (Underlined (Italics) supplied) ( 7 ) THE learned counsel for the petitioners submitted that since these lands are shown in the revenue records as redeemed lands, that fact is proved enough to show that they were, in fact, redeemed lands and, therefore, the authorities concerned were bound to issue the passes sought for by his clients and that since the said authorities have failed to do their duties a writ of mandamus should be issued by this Court to them directing them to issue such passes. ( 8 ) ON the other hand, the learned government Advocate argued that the authorities could be directed, by issuing an appropriate writ, to dispose of the matters pending before them in accordance with Rules, but without any further direction as to how they should proceed in the matters. ( 9 ) THE question is, what should be the nature of the direction to the authorities concerned in these matters ? ( 10 ) IT is not in dispute that in both these cases the appeals preferred to the 2nd respondent have been pending since a considerable time. When a public authority, like the 2nd respondent, fails to do his duty a writ of mandamus could be issued enforcing the performance of that duty by that authority. In this connection the following observations of the learned author H. W. R. Wade in his book "administrative law" (4th Edition) at page 597 may be noted :"the prerogative remedy of Mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kinds. Like the other prerogative remedies, it is normally granted on the application of a private litigant, though it may equally well be used by one public authority against another. The commonest employment of mandamus is as a weapon in the hands of the ordinary citizen, when a public authority fails to do its duty by him. " ( 11 ) THE learned counsel for the petitioners wants to go a step further and says that, in the instant cases, there is no dispute that the lands were redeemed lands and, therefore, the 2nd respondent should be directed to issue the passes as sought for by his clients. In this connection he also places reliance on two decisions of this Court and as well as on a decision of the Supreme Court. In this connection he also places reliance on two decisions of this Court and as well as on a decision of the Supreme Court. In C. P. Mayan Hejee v. Divisional Forest Officer (1)and in Chettinad Plantations Ltd. v. Divisional forest Officer (2) the Government pleaders appearing for the State had not disputed that the lands involved in those cases were redeemed lands In view of such admissions this Court in both those petitions directed the Divisional Forest officer to issue permits to the concerned petitioner as sought for in those cases. ( 12 ) IN Commercial Timber Enterprises v. State of Karnataka (3)-Writ appeals nos, 18 to 25 of 1975 this Court upheld the orders passed by the learned single Judge to the effect that the lands involved in those cases were redeemed lands and, therefore, the Government was not entitled to collect any seigniorage fee. Against the common order of the Division bench dismissing the appeals preferred by the State applications were filed by the State seeking leave to appeal to the supreme Court. In State of Karnataka and others v. Messrs. Commercial Timber enterprises (4) the Division Bench, while dismissing the said applications, has observed as follows :"in the revenue records it was admitted the lands in question were shown as "redeemed sagu lands". The Revenue Law of Coorg is absolutely clear that the owner of redeemed land is the owner of the trees thereon, and the Government is not entitled to collect any seigniorage fee the contention of the State was that entries in the revenue records were not correct. But it is undisputed that the records have shown the lands as "redeemed Sagu Lands" ever since the year 1911, and, in some cases, even from the year 1901. Therefore, we rejected the appeals at the preliminary hearing stage. There is no substantial question of law since it is a pure question of fact whether the lands are "redeemed or unredeemed". Against that common order special leave petitions were preferred in the Supreme court in the State of Karnataka v. Commercial timber Enterprises (3 ). The supreme Court has been pleased to observe as follows :" It is admitted that for the last 60 years this land has been registered as redeemed land in the revenue records of the State. Against that common order special leave petitions were preferred in the Supreme court in the State of Karnataka v. Commercial timber Enterprises (3 ). The supreme Court has been pleased to observe as follows :" It is admitted that for the last 60 years this land has been registered as redeemed land in the revenue records of the State. If this be correct, as it must be presumed to be, the State has no further case. If this is really not redeemed land but has been wrongly entered as redemed land, the State should have taken steps to right the error and as a follow up, taken action against the officers who are responsible for causing loss to the State by making wrong entries. By refusing leave I hope the State will chase the officers who are responsible for this loss to the public treasury if really there is an error". As is clear from what is extracted above in all those cases this Court and the supreme Court proceeded on the basis that the lands involved in the said cases were admittedly redeemed lands Even in the Special Leave Petitions before the supreme Court Counsel appearing for the state had admitted that the lands involved in those cases were shown as redeemed lands in the concerned revenue records since about 60 years. ( 13 ) IN the cases with which we are concerned no doubt the counsel for the petitioners submitted that the lands involved are shown in the concerned revenue records as redeemed lands, but the learned Government Advocate says that he had not been authorised to make any submission that the lands, in fact, were redeemed lands. It is true that if there are entries in the revenue records like the record of rights showing therein that the lands shown therein were redeemed ones, the same are prima facie proof of the fact that the said lands were redeemed lands. ( 14 ) BUT the important question in cases like these is as to whether it is for this Court, exercising its writ jurisdiction, to take a decision one way or the other on the merits of the issues involved. ( 14 ) BUT the important question in cases like these is as to whether it is for this Court, exercising its writ jurisdiction, to take a decision one way or the other on the merits of the issues involved. ( 15 ) HAVING regard to the facts of these cases I am of the view that it may not be appropriate for this Court to direct the 2nd respondent to dispose of the appeals pending before him in a particular manner. The 2nd respondent being a statutory authority, exercising his powers under sub-rules (2) and (3) of r. 146 of the Rules, is entitled to pass an appropriate order on merits. Both the respondents are statutory authorities and whenever they are approached by citizens with a request similar to the ones made by the petitioners they should hold necessary enquiries, and if satisfied that, in law, the applicants or petitioners are entitled to the reliefs sought for by them, have to pass appropriate orders in the matters. They cannot escape their responsibilities and fail in their duties. If they fail in their duties this Court, exercising its writ powers, can enforce the performance of those duties by the said authorities. But, while doing so, should not direct them as to how they should proceed and what orders they should pass. It is for those statutory authorities, after examining all aspects of the cases pending before them and using their discretion judicially, to pass appropriate orders thereon, They can be compelled to exercise their jurisdiction, but this Court should not step into their shoes and pass orders on merits. Doing so may lead to several consequences of which, perhaps the most glaring one would be giving handle to the statutory authorities to evade their responsibilities of performing their duties in accordance with rules, Exercising its jurisdiction this Court should not give room for such things to happen. In the iong run such evasion of responsibilities by these authorities will have an adverse effect on the administration. ( 16 ) AFTER considering all these aspects i am of the opinion that it would meet the ends of justice if the 2nd respondent is directed to dispose of the appeals pending before him within a reasonable time to be fixed by the Court. ( 17 ) THEREFORE, in both these petitions rules issued. ( 16 ) AFTER considering all these aspects i am of the opinion that it would meet the ends of justice if the 2nd respondent is directed to dispose of the appeals pending before him within a reasonable time to be fixed by the Court. ( 17 ) THEREFORE, in both these petitions rules issued. Petitions are allowed; the Rules issued are made absolute; and the and respondent in these two petitions is directed to dispose of the appeals filed by the petitioners (herein) in accordance with Rules within three months from the date of the communication of this order. No costs. --- *** --- .