JUDGMENT A. K. SAMANTARAY, J. — In this writ petition under Articles 226 & 227 of the Constitution of India the petitioner has challenged the order dated 30.6.2004 of Divisional Forest Officer, Ghumsur North Division, Bhanjanagar (opposite party No.1) rejecting his application for issue of Timber Transit permit for removal of trees (forest produce) standing on his private recorded land in Mouza Mujagada under Ghumsur Tahsil in the District of Ganjam. 2. The petitioner along with others is the owner of a piece of land in Mouza Mujagada under M.S. Holding No.210, Plot No.1958 and the petitioner had applied on 5.3.2001 to opposite party No.1 for issuance of T.T. permit for removal of trees standing over the said plot of land. As per the letter of oppo¬site party No.1 bearing No.454 dated 4.2.2004 the petitioner submitted the required documents i.e., ROR and rent receipts etc. The opposite party No.1 thereafter issued intimation to the Tahasildar, Ghumsur, Bhanjanagar (opposite party No.2) for a joint verification and joint verification was conducted in presence of Revenue and Forest officials and it was found that 111 numbers of trees of Sal and Teak variety were standing over the said plot. After report of joint verification (Annexure-3) was received by opposite party No.1 he took up the matter and after considering all the materials observed that the petitioner had acquired the land on 24.1.1985 i.e., after 25.10.1980 when Forest Conservation Act, 1980 came into force. He further ob¬served that the Hon’ble High Court by order dated 18.12.2000 in OJC No.7498 of 2000 had put an embargo on issue of TT permit in respect of trees standing on Patta land in the State where Patta (lease) granted and title acquired was after 25.10.1980. Opposite party No.1 referred to the judgment of this Court dated 10.7.2002 in OJC No.4819 of 2001 and held that TT permit could not be issued for the trees of the recorded plot No.1958 under holding No.210 of Mujagada belonging to the applicant (Annexure-4) and rejected his application. 3. While challenging the ground of rejection under Annex¬ure-4 petitioner has stated in the writ petition that the said M.S. Plot No.1958 under Holding No.210 measuring an area of Ac.4.00 corresponds to Sabik Plot No.351-2C under Holding No 184 area Ac.3.94 decimals of Mouza Mujagada. 3. While challenging the ground of rejection under Annex¬ure-4 petitioner has stated in the writ petition that the said M.S. Plot No.1958 under Holding No.210 measuring an area of Ac.4.00 corresponds to Sabik Plot No.351-2C under Holding No 184 area Ac.3.94 decimals of Mouza Mujagada. The said land was acquired by the father of the petitioner long since and draft ROR was issued on 26.6.1978 in the names of Ananta Patnaik and Sita¬ram Patnaik, father of the petitioner, (vide Annexure-5) and after the death of the father of the petitioner the same has been recorded in the name of the petitioner and his brothers in the final ROR published in 1985 (Annexure-6). It is stated in the writ petition that the observation of opposite party No.1 that the land in question was acquired after 1980 is absolutely with¬out any basis and the cut off date i.e., 25.10.1980 fixed by this Court in OJC No.7598 has no application to the petitioner’s case as his land was acquired long before 25.10.1980. Besides, the land of the petitioner is not a government leased land and it was acquired and occupied by the ancestors who had planted Teak and Sal saplings and raised cashew plantation over it after acquisi¬tion. It is stated with reference to a decision of this Court reported in 79 (1995) CLT 189 (Laxminarayan Saw Mill and others v. State and others) that “in view of the provisions of Orissa Survey and Settlement Act, 1958 and the Rules framed thereunder, Orissa Forest Act, 1972, Indian Forest Act, 1927, no area can be treated as forest without following elaborate procedure and then due notification and as such the land of the petitioner cannot be treated or termed as forest or forest land”. The learned counsel for the petitioner referring to the case of T.N. Godavarman Thirumulkpad, AIR 1997 SC 1228 has stated that over their private piece of land the predecessor of the petitioner had planted Sal and Teak saplings which have matured by efflux of time and by no stretch of imagination the said land can be termed as forest and cannot be construed as a forest nor can it be brought under the fold of Forest Conservation Act, 1980. It is further pleaded that land of the petitioner which admittedly has 111 numbers of Sal and Teak trees and recorded in the ROR as Cashew plantation does not come under the definition of forest land as defined in Sec¬tion 2 (c) of the Orissa Communal Forest and Private Lands (Prohibition of Alienation), Act, 1948 as the same has at no point of time been declared to be forest land by notification of the State Government. Finally, it is pleaded that since the forest authorities are already influenced by the judicial pronouncement of this Court and no remedy against Annexure-4 can possibly be available by preferring an appeal the petitioner has ap¬proached this Court for a decision on merit and has prayed for quashing of Annexure-4 and a direction to opposite party No.1 to issue TT permit in favour of the petitioner. 4. Opposite party No.1 in the counter affidavit has as¬serted, inter alia, that the land of the petitioner has been acquired on 24.1.1985 as the settlement authorities have issued the ROR on that date and in view of the verdict of this Court the rejection of the petition for issue of TT permit cannot be called in question as no document was produced by the petitioner before the opposite party No.1 to show that the land was pur¬chased by his ancestors long back and the land being acquired in 1985 i.e., long after cut off date 25.10.1980 the petitioner has rightly been denied TT permit. 5. The short question that arises for consideration in view of the rival contentions of the parties is whether in view of the Forest Conservation Act, 1980 and the order of this Court dated 18.12.2000 passed in Misc. Case No.12538 of 2000 arising out of OJC No.7498 of 2000 directing not to issue TT permit in respect of the trees standing over Patta land of the State where title has been acquired after 25.10.1980 has any application to the petitioner’s land so as to reject this petition for issue of TT permit. 6. The learned counsel for the petitioner submitted that opposite party No.1 has not only misread, he has misconstrued Annexure-6 the ROR of the land of the petitioner and has rejected the application for grant of TT permit wrongly interpreting and applying the decision of this Court in OJC No.7498 of 2000 to the petitioner’s case. 6. The learned counsel for the petitioner submitted that opposite party No.1 has not only misread, he has misconstrued Annexure-6 the ROR of the land of the petitioner and has rejected the application for grant of TT permit wrongly interpreting and applying the decision of this Court in OJC No.7498 of 2000 to the petitioner’s case. He further submitted that this Court passed order on 18.12.2000 in Misc. Case No.12538 of 2000 in OJC No.7498 of 2000 restricting issue of TT permit in respect of trees in Patta land of the State when Patta or title had been acquired after 25.10.1980. In the said case the petitioner had got the land recorded in his name as a Raiyat only in the year 1988 when he was issued Patta by the Settlement authorities and he came within the purview of order dated 18.12.2000. Besides, the reason for which he intended to fell the forest growth and sought TT permit was for cultivation of the land and the available trees standing thereon not affecting his cultivation in any manner and the petitioner having substantial agricultural properties and there being no real necessity for felling the trees and removing them, in the interest of conservation of forest, the prayer was rejected. Distinguishing the case of the petitioner from the facts of the case decided in OJC No.7498 of 2000 learned counsel for the petitioner submitted that the joint verification report (Annexure-6) prepared and submitted to opposite party No.1 pursu¬ant to Annexure-1 his letter to the opposite party No.2 and there is specific mention in paragraph-8 of Annexure-1 to verify and incorporate in the report if the plot of land of the petitioner was a lease plot or not and if a leased out plot, the year of such lease. He argued that as is apparent on the face of Annexure-6 one Revenue Inspector and one Revenue Supervisor accompanied the ACF and the Range Officer and verification was done in presence of the petitioner on 16.3.2004 and had it been a lease hold land and acquired after 25.10.1980 the officials conducting the joint verification could not have failed to make a mention to that effect in Annexure-6. Drawing our attention to the copy of the draft ROR in respect of the said plot, learned counsel for the petitioner argued that copy of the draft ROR published was ob¬tained in the year 1978 which is a concrete proof of fact that Annexure-5 was published prior to 1978 and final ROR in respect of the said property was published in the year 1985 by the Set¬tlement authority. Apart from these two annexures he referred to copy of sale deed No.201 dated 25.1.1957 filed along with his rejoinder and submitted that since final ROR was already pub¬lished after current settlement was over and the petitioner had submitted the same at the time of joint verification, he did not file the copy of the sale deed and since opposite party No.1 misconstrued the ROR to be a lease document, he was constrained to file the same (copy of the sale deed) to show that the land was not lease hold land but was acquired by the father of the petitioner in the year 1957. We have examined the document in¬cluding Annexure-6 and we have absolutely no hesitation to find that the land of the petitioner is not a lease hold land and ob¬tained from Government on lease and on the other hand it is a purchased land of the father of the petitioner and recorded in the names of the petitioner and others in the current settlement vide Annexure-6. On the face of our above finding on the nature of the petitioner's land in question the contention of opposite party in the counter affidavit that the land has been acquired after 25.10.1980 is without any merit and substance and thus cannot be accepted. The learned Addl.Government Advocate failing utterly to convince us that the petitioner’s land is a leasehold land acquired after 25.10.1980 drew our attention to a decision of this Court rendered in 2002 (II) OLR-206 (Bhagawan Bhoi v. State of Orissa, represented through Commissioner-cum-Secretary, Forest & Environment Department and others, where the question whether the Forest Conservation Act, 1980 applies to trees stand¬ing on the private owned land was answered by the Division Bench following the view in the decision of the apex Court in the case of T.N. Godavarman (supra) held that the Act applies to any forest land whether declared as private forest or not and whether the ‘forest’ is a reserved forest or not. Once the land satisfies the description of being a forest land, it has to be taken that the Act would have application and no permission to fell trees could be granted without prior concurrence of the Central Govern¬ment. In. T. N. Godavarman case (supra) dealing with the scope of the expression ‘forest’ and speaking on the scope of the ‘forest’ in the Forest Conservation Act, 1980 their Lordships of the apex Court have stated thus:- “The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in eco¬logical imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith must apply to all forest irrespective of the nature of ownership or classification thereof. The word ‘forest’ must be understood according to its dictionary meaning. This descrip¬tion covers all statutorily recognized forests, whether designat¬ed 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 under¬stood 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 of the Act. The provision enacted in the Forest Conservation Act, 1980 for the conservation of forest and the matters connected therewith must apply clearly to all forests so understood irre¬spective of the ownership or classification thereof.......” This aspect has been made abundantly clear in the decision of the Court in the case of Ambica Quarry Works v. State of Gujarat, 1987 (I) SCC 213 : ( AIR 1987 SC 1073 ). Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Suppl. (I) SCC 504 ( AIR 1989 SC 594 ) and recently in the order dated 29th of November, 1996 in WP(C) No.749 of 1995, Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority. In that decision the apex Court has stated that in view of the meaning of the word ‘forest’ in the Act, it was obvious that prior approval of the Central Government was required for any non-forest activity within the area of any forest. In that decision the apex Court has stated that in view of the meaning of the word ‘forest’ in the Act, it was obvious that prior approval of the Central Government was required for any non-forest activity within the area of any forest. The Court also directed that in accordance with this Section of the Act all ongoing activities within any forest in any State throughout the Country without the prior approval of the Central Government had to cease forthwith. 7. The apex Court once again in the case of Samatha v. State of Andhra Pradesh and others, AIR 1997 SC 3297 in paragraph 233 observed that :- “Bearing in mind the objects sought to be achieved by the Conservation Act, we see no justification to give a restrictive meaning to the expression ‘forest land’ used in Section 2 of the Conservation Act. On the other hand, the expression ‘forest land’ should be given an extended meaning to cover a track of land covered with trees, shrubs, vegetation and undergrowth under mingled with trees with pasture, be it of natural growth or man-made forestation.” 8. Learned Addl. Government Advocate heavily relying on the aforesaid decision of the apex Court argued that there could not be any doubt that the Forest Conservation Act would apply to any forest land whether declared as private forest or not and whether the forest is a reserved forest or not. He further argued that once it is found that the land satisfies the description of being a forest land it has to be held that the Forest Conservation Act would have application and no permission to fell trees would be granted without prior concurrence of the Central Government. Calling our attention to Annexure-6, the ROR of petitioner’s plot No.1958 and its area which stretches up to four acres, its recorded character i.e. cashew plantation (Valia Bagayat) and admittedly 111 numbers of Teak and Sal trees standing over it, the learned Addl. Calling our attention to Annexure-6, the ROR of petitioner’s plot No.1958 and its area which stretches up to four acres, its recorded character i.e. cashew plantation (Valia Bagayat) and admittedly 111 numbers of Teak and Sal trees standing over it, the learned Addl. Government Advocate argued that the guideline of the Supreme Court relating to definition of forest within the Forest Conservation Act, 1980 squarely applies to the land of the petitioner and thus it comes within the definition of the forest as defined in Section 2(i) of the said Act and as such the rejec¬tion of the petition of the petitioner for grant of TT permit for felling and transporting the trees standing over it is lawful and justified. 9. Learned counsel for the petitioner citing a recent decision of the apex Court reported in AIR 2004 SC 5080 (Sri Ram Saha v. State of West Bengal and others where in a case under Sections 4-B, 4-C, 4-A of West Bengal Land Reforms Act (10 of 1996) relating to permission of Collector to fell trees, held that it was not required for felling trees in non-forest private plantation/orchard/bagan. The Court also held that the ban on felling of trees imposed of by Court in T.N. Godavarman (supra) does not extend to non-forest private plantation. Restriction imposed u/s. 4-A on cutting more than one tree in non-forest private plantation is confined to three sub-divisions of Darjeeling District. Court cannot enlarge or extend the scope of Section 4-A to areas in State of West Bengal other than areas specified in three sub-divisions of Darjeeling District. The apex Court heard the appeal of the appellant, owner of certain land classified as ‘Bagan’ (garden) in the ROR who in the process of cutting trees from his garden to renovate it by planting new hybrid saplings was prevented by police personnel and Block Land Reform Officer from further felling trees citing the judgment of the apex Court in T.N. Godavarman case (supra). The appellant in the circumstance approached the High Court by filing the writ application challenging the action of the officers and seeking some directions. The Hon’ble Single Judge of the High Court referred the matter to the Division Bench. The Division Bench of the High Court disposed of the writ petition permitting the appellant to fell trees standing on his garden but subject to certain conditions and restrictions. The Hon’ble Single Judge of the High Court referred the matter to the Division Bench. The Division Bench of the High Court disposed of the writ petition permitting the appellant to fell trees standing on his garden but subject to certain conditions and restrictions. Hence, the appeal was pre¬ferred in the apex Court questioning the validity and correctness of the impugned judgment contending that to fell trees within his garden land, the appellant was not required to seek any permis¬sion u/s. 4-B read with Section 4-C of the Act. 10. The apex Court in the said appeal had the occasion to deal with the provisions of Forest Conservation Act, 1980 and the legislative intent behind its enactment and interpreting the decision in T.N. Godavarman (supra) in their judgment, quoted the direction given in paragraph 5 which we would profitably extract below some of which we consider relevant for our purpose :- “(i) In view of the meaning of the word ‘forest’ in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any ‘for¬est’. In accordance with Section 2 of the Act all ongoing activi¬ty within any forest in any State throughout the Country without prior approval of the Central Government must cease forthwith. (ii) Xxx xxx xxx (iii) Xxx xxx xxx (iv) The ban will also not affect felling in any private planta¬tion comprising of trees planted in any area which is not a forest.” 11. In the said judgment the apex Court has given certain specific directions to States specified therein and relevant directions given to the State of Himachal Pradesh and the hill regions of the State of U.P. and West Bengal which is relevant read as follows :- “There will be no felling of trees permitted in any forest public or private. This ban will not affect felling in any pri¬vate plantation comprising of trees in any area which is not a forest and which has not been converted from an earlier forest.” 12. This ban will not affect felling in any pri¬vate plantation comprising of trees in any area which is not a forest and which has not been converted from an earlier forest.” 12. Learned counsel for the petitioner submitted that the Apex Court in the judgment of Sri Ram Saha (supra) in paragraphs- 9 and 10 has elaborately interpreted the earlier judgment in T.N. Godavarman (supra) and the effects of the direction given therein and has made it abundantly clear that the direction given by the Court is clearly confined to felling of trees in forest land and the said ban was not extended to non-forest private plantation. Learned counsel took us through the relevant paragraphs of the judgment which are quoted below :- “9. It is clear from the aforesaid judgment of this Court that the observations made and directions given were in relation to Forest Land. The term of ‘forest land’ occurring in Section 2 of the Conservation Act will not only include ‘forest’ as under¬stood in the dictionary sense but also includes any land recorded as forest in the Government record irrespective of the ownership. It is also stated that the provisions of the Conservation Act for the conservation of Forest and the matters connected therewith must apply clearly to all forests so understood irrespective of ownership or the classification thereof. By the directions given in the said judgment, certain bans are imposed including a ban in respect of felling of trees in forest, irrespective of the nature of the forest, i.e. whether the forest is public forest or pri¬vate, reserved, protected or otherwise. It is clear from the observations made and directions given in the aforesaid judgment of this Court that though ban was imposed in respect of undesira¬ble activities in the forest irrespective of the nature of the forest and its ownership but such a ban did not affect felling of trees in any private plantation in an area which is not a forest. Thus, it is clear that the direction given by this Court is clearly confined to felling of trees in forest land and the said ban was not extended to non-forest private plantation. It is made clear in the judgment that the directions given are to be imple¬mented notwithstanding any order at variance made or which may be made by Government or any authority, tribunal or Court includ¬ing the High Court. It is made clear in the judgment that the directions given are to be imple¬mented notwithstanding any order at variance made or which may be made by Government or any authority, tribunal or Court includ¬ing the High Court. In the impugned judgment, the High Court having referred T.N. Godavarnan Thirumulkpad etc. (supra) of this Court has stated thus :- In other words, the direction of the Supreme Court regarding the application of ban on felling of trees in forests and non-application of the same in non-forest private plantation has to prevail over any other deviating order even if such order has been or is passed by the High Court. It is however to be noticed here that while the Supreme Court expressly recorded in its direction about the non-application of the ban in any non-forest private plantation, the Supreme Court only nullified in clear words the orders at variance which might have been or might be passed by any Government, authority, tribunal or Court. The Supreme Court however, did not say nor purported to say that any statutory or enacted law regarding non-forest private plantation will not be given effect to.” “10. In the impugned judgment, the High Court has clearly stated ban on felling of trees imposed by this Court was only relating to trees in forest area and not to non-forest private plantation and that any order contrary cannot prevail. Having said so, the High Court went on to say that this Court did not direct that any statutory or enacted law regarding non-forest private plantation will not be given effect to. This legal posi¬tion cannot be faulted but the High Court committed an error in its application. Admittedly, there is no statutory or enacted law which enabled the State authorities either to take action for felling of trees in private plantation not being forest and in the absence of any requirement of any statutory enactment to take permission for felling of tree in a private plantation, the High Court could not have imposed restrictions and conditions as is ultimately done in the impugned judgment while permitting the appellant to fell the trees.” 13. At the cost of the repetition, we would say that the Apex Court as such has held that when admittedly there is no statutory enacted law which enabled the State authorities either to take action for felling trees in private plantation not being forest and in the absence of any requirement of statutory enact¬ment to take permission for felling of trees in a private planta¬tion, the High Court could not have imposed restriction and condition while permitting the appellant to fell trees. 14. The Apex Court in the concluding paragraph held that no permission is required for felling trees in the non-forest pri¬vate plantation/orchard/bagan. The Apex Court said."..........at any rate in the guise of positive interpretation Courts cannot re-write a statute. A purposive interpretation may permit a reading of the provision consistent with the purposes and object of the Act, but the Courts cannot legislate and enact the provi¬sions either creating or taking away substantial rights by stretching or straining a piece of legislation. 15. Learned Addl. Government Advocate could not place before us any statutory enactment of the State Government banning felling of trees standing in the non-forest private plantation/orchard/bagan and submitted that the State Government has not enacted any such legislation banning such operation save and except ban on felling of fruit bearing trees and sandal trees. He further submitted that the refusal or rejection of application for grant of T.T. permit by opposite party No.1 is in keeping with the decision of this Court in O.J.C. No.7498 of 2000. 16. It is needless to mention that the aforesaid decision of this Court was rendered placing heavy reliance on T.N. Goda¬varman case (supra). Now that the Apex Court in Sri Ram Saha (supra) after interpreting its judgment in T.N. Godavarman and considering the definition of forest as per the Forest Conserva¬tion Act, 1980 has in clear and categorical terms held that the ban imposed in T.N. Godavarman in the matter of felling of trees does not extend to non-forest private plantation/orchard/bagan and admittedly there being no State enactment felling of trees in non-forest private plantation, the authorities cannot refuse T.T. permit to the owner of such forest produce if after due enquiry under Section 7(2) of the Orissa Timber and Other Forest Produce Transit Rules, 1980, he is found entitled to. 17. Learned Addl. 17. Learned Addl. Government Advocate finally submitted that the writ petitioner has directly knocked at the door of this Court without exhausting the appellate forum, which was available to him under Rule 7(3) of the aforesaid Rules, 1980, and as such, he may be directed to move the appellate authority challenging the order of rejection passed by opposite party No.1. Learned counsel for the petitioner, on the other hand, contended that the petitioner has in his writ application categorically stated the reasons and the circumstance under which he did not choose to prefer an appeal and came to this Court. He submitted that the forest officials are so much prejudiced and influenced after the judgment and order passed in O.J.C. No.7498 of 2000 that the petitioner felt insecured and apprehending no better result in the appellate forum preferred to move this Court for a decision on merit in the matter by filing this writ petition. We find sufficient force in his contention and at this belated stage; we do not think it just and proper to direct the petitioner to move the appellant authority although the order in Annexure-4 is ap¬pealable one. 18. Before parting, we would like to make it clear that the ban or restriction on felling trees contemplated in Section 2 of the Forest Conservation Act, 1980 shall not apply to any private plantation/orchard/bagan comprising of trees planted in any area which is not a forest. The ban shall also not apply to lease hold land irrespective of date of grant of lease or date of acquisition of title, if the land was not converted from an earlier forest. 19. The writ petition is accordingly allowed. The impugned order dated 30.6.2004 passed by the Divisional Forest Officer, Ghumsur North Division, Bhanjanagar (opposite party No.1) under Annexure-4, is quashed. Opposite party No.1 is directed to deal with the application of the petitioner for grant of T.T. permit in terms of the observations made in the foregoing paragraphs and pass necessary orders on the same within a period of two months from the date of receipt of a copy of this judgment. There shall be no order as to cost. B. P. DAS, J. I agree. Petition allowed.