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2014 DIGILAW 725 (MAD)

Sundaramoorthy v. Chief Conservator Officer

2014-03-21

M.VENUGOPAL

body2014
JUDGMENT 1. The Petitioners have preferred the instant Writ of Mandamus praying for passing of an order by this Court in directing the 2nd Respondent to grant permission to them to collect tamarind fruits from Odukathur Range Karuthamalai Reserve Forest, Vellore District in Old Forest S.No.129, basing upon Bilmuktha trees patta granted to Venkatasami Ryot and grant such other reliefs. 2. The Resume of Writ Facts: (i) According to the Petitioners, one Venkataswami Ryot (Agriculturist) of Kallaparai Village was granted Government Bilmuktha tree patta rights over Tamarind trees in Karuthamalai Forest in Old S.No.129. It was published in Government Gazette Notification dated 21.03.1885. As per the said Bilmuktha Patta, Tamarind Tree fruit is to be collected by Vankataswami and his legal heirs from January to April every year after obtaining permission from the 2nd Respondent/District Forest Officer, Vellore. The said Venkataswami expired during the year 1926 leaving behind his legal heirs. His legal heirs were collecting the Tamarind fruits from Kallaparai Old S.No.129 in Karuthamalai Forest area till 2006. (ii) During the year 2007, the 2nd Respondent/District Forest Officer, Vellore and his subordinate officials objected to the collection of Tamarind fruits. The Petitioners viz., Nagarajan, Anandan, Chinnaraj and Subramani filed W.P.No.5286 of 2007 before this Court and this Court on 09.03.2007 passed necessary orders. Since the 2nd Respondent/District Forest Officer, Vellore is refusing to issue permission to collect Tamarind fruits, the Petitioners have filed the present Writ Petition. 3. Counter Averments of 2nd Respondent: (i) In the counter filed by the 2nd Respondent (also on behalf of the 1st Respondent), it is averred that the Old S.No.129 given by the Petitioners does not exist now. The Karuthamalai Reserve Forest was declared as 'Reserve Forest' on 15.10.1895 (12th November 1895) after following the process as mandated by the Forest Act. This forest consists of part of Old S.No.129 along with other Survey Numbers. In the old survey numbers, the right to collect usufructs from the Tamarind trees were granted to Bilmuktha Pattadars, while all other rights like Lease, Sale or other alienation stood extinguished. Part of old survey number is outside the Reserve Forest and therefore, patta was granted for collection of usufructs for which the Pattadars are paying kist to the Revenue Officials. Part of old survey number is outside the Reserve Forest and therefore, patta was granted for collection of usufructs for which the Pattadars are paying kist to the Revenue Officials. (ii) The Revenue Department Officials were granting permission to the Pattadars for the cutting and removal of Tamarind trees, which are present in the revenue lands and not for the trees present inside the Reserve Forest. So far as these trees are situated outside the Reserve Forest, the Forest Department can have no objection for the same. However, the Forest Department is entitled to prevent the cutting of these trees in the Reserve Forest. Moreover, the Pattadars were only given the right to collect the usufructs and not to destroy the Tamarind trees. It was further stated that in the past, by mistake, the Forest Department as well as the Revenue Department had permitted the removal of the Tamarind trees from the Reserve Forest and this mistake was mainly due to the fact that the Old S.No.129 part of which was outside the Reserve Forest, was included in the Reserve Forest. The Survey numbers outside the Reserve Forest was reclassified and renumbered as S.Nos.134, 136, 144, 133, 140, 143 and 135. This is confirmed by the letter of the Assistant Director, Survey and Land Records, Vellore, addressed to the Collector on 25.4.1986. The Petitioners can take advantage of the mistake committed by officials and these cannot be treated as precedents. (iii) The Notification which mentions the rights of the Bilmuktha Pattadars, runs as follows: "Government patta usufruct rights over the following Bilmuktha tamarind trees is admitted. Subject to any rules that may be passed by the Governor in Council under Section 12(b) of the Forest Act, and also provided that no grant, sale, lease, mortgage or other alienation of the usufruct shall be made without the sanction of Government in accordance with Section 19 of the Act, and that no access shall be had to the trees without the permission of the Forest Officer, save during the months from January to April, both inclusive. The produce may be sold or bartered." (iv) The Petitioners who claim under Venkataswami Ryot in regard to their alleged right of collection of Tamarind fruits is different from that of person called by name, Venkatasami Naidu. The produce may be sold or bartered." (iv) The Petitioners who claim under Venkataswami Ryot in regard to their alleged right of collection of Tamarind fruits is different from that of person called by name, Venkatasami Naidu. The Petitioners are not the legal heirs of the Venkataswami Ryot (original allottee), who was granted the right of collection of Tamarind from Old S.No.129 under the Government Gazette Notification dated 21.05.1885. The averment in Paragraph 2 of the affidavit of the Writ Petition that as per Bilmuktha Patta Tamarind fruit was collected by Venkataswami and his legal heirs from January to April every year after obtaining permission from the 2nd Respondent, is specifically denied as false and baseless. The right alleged to have been granted under the Notification dated 21.05.1885 is only an individual right. It is neither perpetual right nor hereditary or a continuous one. (v) A careful perusal of the Notification would clearly show that it is only an individual right and not a collective or hereditary rights as was falsely claimed by the Petitioners in the affidavit. It is false to state that the alleged heirs of Venkatasami Naidu (viz., the Petitioners) were collecting the Tamarind fruits from Kallaparai Old S.No.129 in Karuthamalai Forest area till 2006. Likewise, it is specifically denied that the Petitioners are the legal heirs of the late Venkatasami. (vi) In fact, several persons attempted to collect tamarind fruits illegally under the guise of alleged hereditary right of collections of tamarind even without causing production of any document to establish that they are the alleged heirs of Venkataswami. For instance, one Varadharajulu Naidu, S/o.Chinna Chennapa Naidu, had filed W.P.No.4672/2007 before this Court, claiming to be the legal heir of Venkataswami. But, Surprisingly, the legal heir certificate produced by the Petitioners of W.P.No.11627 of 2011, does not mention the name of Varadharajulu Naidu at all. In spite of this, Varadharajulu Naidu has filed I.A.No.1761 of 2007 in O.S.No.747 of 2007 before the District Munsif Court, Vellore which is still pending. (vii) There are several rival claimants who attempted to get permission from the Respondent to permit them to collect the Tamarind fruits without any legal right title or interest. Therefore, the 2nd Respondent was to refuse permission for collection of Tamarind fruits from the trees present inside the Reserve Forest. (vii) There are several rival claimants who attempted to get permission from the Respondent to permit them to collect the Tamarind fruits without any legal right title or interest. Therefore, the 2nd Respondent was to refuse permission for collection of Tamarind fruits from the trees present inside the Reserve Forest. As part of the area of Old S.No.129 is within the Reserve Forest, the Revenue Officials cannot hold any control over the area which is exclusively within the possession, control and supervision of the Forest Department and further none of the Petitioners seemed to have approached the Respondent after the demise of Venkataswami during the year 1926. The Petitioners are not entitled to enter into the area in Old S.No.129 which is within the Karuthamalai Reserve Forest, which has almost become a wild life sanctuary wherein the intruders cannot be allowed. (viii) A perusal of the Government Notification dated 21.05.1985 will clearly disclose that there are several other grantees/allottees under different categories of allotments wherein the names of the said grantees/allottees with their surnames and occupations were clearly mentioned. For instance, S.No.11 to 14 one Kuppusamy Pillai, S.No.15 to 19 Annasamy Pillai, S.No.38 Kamalanatha Gounden, S.No.39 Ramaraja Ryot, S.No.40 Raghavachari Ryot, S.No.42 Thimmaya Nayudu etc., were specifically mentioned, whereas in the same patta allotment, in S.No.20, the name of Venkataswami Ryot, was only mentioned. This clearly indicates that the surname "Naidu" was deliberately omitted since the grantee/allottee in S.No.20 was a different person by name Venkataswami, who was a farmer and not Venkatasami Naidu as claimed by the Petitioners. (ix) Venkataswami Ryot and Venkatasami Naidu is not the one and the very same person. Both are different persons and the Petitioners are not the legal heirs of the said Venkataswami. As the Petitioners had not established satisfactorily that they are the successors of the Bilmuktha Pattadars entitled to collect the usufructs of the Tamarind trees. They have no rights whatsoever. (x) The Respondent denies that all the Petitioners are the legal heirs of Venkataswami. They do not belong to one entity and they are not the legal representatives of Venkataswami. Because there are only four persons as Petitioners in W.P.No.5286/2007, that is 4th, 27th, 31st and 32nd Petitioners of W.P.No.11627 of 2011 alone were Petitioners in W.P.No.5286 of 2007. (x) The Respondent denies that all the Petitioners are the legal heirs of Venkataswami. They do not belong to one entity and they are not the legal representatives of Venkataswami. Because there are only four persons as Petitioners in W.P.No.5286/2007, that is 4th, 27th, 31st and 32nd Petitioners of W.P.No.11627 of 2011 alone were Petitioners in W.P.No.5286 of 2007. Other Petitioners in W.P.No.11627 of 2011 were nowhere in picture in W.P.No.5286/2007 which vividly reveals that the present Writ Petition has been filed in collusion. Further, the Petitioners have not availed their relief before the Subordinate Court if at all they have any relief. The Petitioners' Contentions: 4. The Learned Counsel for the Petitioners submits that all the Petitioners are legal heirs of Venkataswami and they are not different claimants but only one entity as they are legal representatives of Venkataswami and as such, they are to be permitted by the 2nd Respondent to collect Tamarind fruits from Odukathur Range, Karuthamalai Reserve Forest, Vellore District in Old Forest S.No.129 basing upon Bilmuktha trees patta granted to the said Venkataswami Ryot. 5. The Learned Counsel for the Petitioners also places reliance on the order dated 09.03.2007 of this Court in W.P.No.5286 of 2007 (between Nagarajan and 3 others Vs. The Chief Conservator of Forest, Vellore and 2 others) wherein at paragraph Nos.2 and 3, it is observed and held as follows: "2.The issue involved in the present writ petition is in respect of Bilmuktha Tree patta. Learned counsel appearing on either side submits that the order dated 6.3.2007 passed in W.P.No.4672 of 2007 can be passed in this writ petition also. 3. Therefore, following the order dated 6.3.2007 made in W.P.No.4672 of 2007, there will be an order in this writ petition also by holding that the Bilmuktha Pattadars would be entitled to collect usufructs of the tamarind trees from the Survey Numbers, which is reclassified and renumbered for S.No.129 during the period from January to April every year with due permission from the Forest Department Officials. It is open to the respondents to satisfy themselves as to whether the petitioners are also Bilmuktha Pattadars entitled to collect the usufructs as per the notification dated 15.10.1985." 6. It is open to the respondents to satisfy themselves as to whether the petitioners are also Bilmuktha Pattadars entitled to collect the usufructs as per the notification dated 15.10.1985." 6. The Learned Counsel for the Petitioners brings it to the notice of this Court that the District Forest Officer in Na.Ka.No.365/04/Pa4 dated 24.04.2007 had, inter alia, directed Nagarajan and 3 others (Writ Petitioners in W.P.No.5286 of 2007) to approach the concerned Tahsildar and to obtain certificate as to who is the Bilmuktha legal heir in respect of Kappukadu in Old S.No.129 in regard to the collection of Tamarind tree fruits usufructs. Also that, the Tahsildar, Ambur of Vellore District dated 29.12.2010 has issued the Succession Certificate in respect of 32 persons mentioned therein. 7. The Learned Counsel for the Petitioners strenuously projects an argument that in the impugned order passed by the 2nd Respondent dated 16.03.2011 in paragraph 1), it is clearly observed that as per Board of Revenue (Land Revenue), Madras proceedings dated 21.5.1895 in Serial No.20, permission was granted to one Venkatasami Ryot of Kalluparai Village in respect of S.No.129 for collection of Tamarind tree usufructs and under this circumstance, his heirs claiming the usufructory rights are not an acceptable one and further, it was also stated that it was not proved beyond doubt to the satisfaction of the 2nd Respondent that the Petitioners are the legal heirs and as such, the permission was not granted. 8. On behalf of the Respondents, it is submitted that in Old S.No.129 along with other survey numbers, right to collect usufructs from the tamarind trees were granted to Bilmuktha Pattadars and part of Old S.No.129 is outside the Reserve Forest and as such, patta was granted for the collection of usufructs. 9. It is the further contention of the Respondents is that the right to collect tamarind fruits is only an individual right and the Petitioners, who claim to be the purported legal heirs of late Venkataswami, ought to have approached the Forest Department soon after Venkataswami's demise as early as 1926 for the grant of permission for collection of tamarind fruits because of the reason that the right to collect tamarind fruits extinguished on the demise of said Venkataswami. Added further, as the part of the area of old S.No.129 is within the Reserve Forest, the Revenue Officials cannot hold any control over the area which is exclusively within the possession, control and supervision of the Forest Department. Moreover, it is the plea of the Respondents that the Petitioners are not entitled to enter into the area in Old S.No.129 which is within the Karuthamalai Reserve Forest, which has almost become a wild life sanctuary wherein intruders cannot be allowed. 10. Finally, on behalf of the Respondents, a categorical stand is taken that the Petitioners are not the legal heirs of Venkataswami and in fact, Venkataswami is a different from that of Venkatasami Naidu and also that, Bilmuktha Patta was granted to Venkataswami and not to Venkatasami Naidu and that apart, they have no rights whatsoever. Discussions and Conclusions: 11. It is to be pointed out that the Proceedings of the Board of Revenue (Land Revenue), Vellore dated 21.05.1895 in paragraph 1 to 3, it is mentioned as under: "I have to honour to report the conclusion of the settlement of the proposed Karuthamalai reserved forest, block No.111, in the Vellore Taluk of your district. 2. The notification under Section 4 proposing to constitute this area into a reserved forest appeared in the Fort St. George Gazette, dated 13th June 1893, and the proclamation under Section 6 was published in the District Gazette, dated 1st November 1893. 3. The block was perambulated, inspected and enquired into by me in October and November 1895 when forty-two claims in all were filed and admitted for the following rights:- (i) Eight claims were to rights of way over a cart-track and seven foot-paths. (ii) Eighteen claims were to right to shrines and rights of way to them and to right to so the water of a kinnur. (iii) Fifteen claims were to Government patta and inam rights over 143.73 acres of land and usufruct rights over 2,745 tamarind trees. (iv) One claim was to miscellaneous rights. The last easement claim was disposed of 15th January 1894, and the appeal time expired on 16th March 1894 without any appeal being preferred." 12. (iii) Fifteen claims were to Government patta and inam rights over 143.73 acres of land and usufruct rights over 2,745 tamarind trees. (iv) One claim was to miscellaneous rights. The last easement claim was disposed of 15th January 1894, and the appeal time expired on 16th March 1894 without any appeal being preferred." 12. Also that, the Enclosure No.2 of the Proceedings dated 21.05.1895 under the caption 'B. Register of claims to Lands, rights to Forest produce or easements in the proposed Karuthamalai reserved Forest No.114, Vellore Taluk, North Arcot District', among other Survey Numbers S.No.129-6 an extent of 2 acres, in S.No.129-3, an extent of 0.66 cents and S.No.129-4, an extent of 7 acres 29 cents, totalling in all mentioned as 30 acres 40 cents. Further, in the North Arcot District Gazette Supplement dated 12.11.1895 in Clause V, it is mentioned as follows: "V. Government patta unsufruct rights over the following Bilmktha tamarind trees is admitted subject to any rules that may be passed by the Governor in Council under Section 12(b) of the Forest Act, and also provided that no grant, sale, lease, mortgage or other alienation of the usufruct shall be made without the sanction of Government in accordance with section 19 of the Act, and that no access shall be had to the trend without the permission of the Forest-officers, have during the months from January to April, both inclusive. The produce may be sold or bartered. Access is allowed to them for men only to a width of three feet as detailed against each. Village Situation No of tamarind trees Remarks Asanampattu 231 A 20 By the footpath in item I(b) From the western boundary of the reserve Kallaparai 129 1,110 Mel Arasampattu Village limts 160 By the footpath in item I(2) Tirtani Limits 1,435 Grand Total 2,715 13. A perusal of the communication of Assistant Director, Survey & Land Records, Vellore, in RC.No.2584/85, dated 25.4.1986 addressed to the Collector of North Arcot District, Vellore – 5, it is, among other things, stated as follows: "With reference to the letter dated 19.9.85 cited, I have inspected the site, the R.S.No.129, etc. A perusal of the communication of Assistant Director, Survey & Land Records, Vellore, in RC.No.2584/85, dated 25.4.1986 addressed to the Collector of North Arcot District, Vellore – 5, it is, among other things, stated as follows: "With reference to the letter dated 19.9.85 cited, I have inspected the site, the R.S.No.129, etc. of Village No.27, Kallaparai, Vellore Taluk along with the Forester concerned and the Divisional Deputy Inspector of Survey, Revenue Divisional Officer's Office, Ranipet and Village administrative officer, Asanampet group (having jurisdiction of 27 Kallaparai Village also) on 21.04.86, * The old S.No.129/1 to 7 were correlated to Division S.No.136, 134, 144, 133, 140, 143 and 135 respectively. Of which the S.No.136 (Correlated to old S.No.129/1) has been classified as Kallaparai Eri Puramboke. in which only one Tamarind tree is in existence. The other R.S.Nos. are all patta land. R.S.No.129 with an extent of 61.55 acres is classified as grazing ground puramboke. While Block Survey has been done in R.S.No.129 as new S.Nos.129 and 166 to 175 split up for assignment to the encroachers as per TK 8A.75/1380 dt. 20.7.71. The assignment is being given to the encroachers by the Revenue Department. It is further observed during my inspection that the above R.S.Nos. 136, 134, 144, 133, 140, 145 and 135 (old S.No.129/1 to 7) and R.S.No.129 (in which Waste Block Split Survey done as S.No.129 & 166 to 175 are not coming within the limits of Forest Department but administered by the Revenue Department only. 1100 Tamarind Trees are not in existence in above R.S.Nos. as stated in the reference cited except only one tamarind tree in Rs.No.136 which has been Auctioned by the Revenue Authorities on 7.1.86 for Rs.7/- to one Thiru.Sriram to have user fruits for the pasli 1395 (from 1.7.85 to 30.6.86) The Billmuktha pattadar Thiru.C.K.Varadarajalu was also present during my field inspection. Karuthamalai reserve Forest which is under the control of Forest Department as nothing to do with the above said R.S.Nos.129 etc., which are only administered by the Revenue Department and having only one Tamarind tree in R.s.No.136 (old S.No.129/1) Kallaparai Eri Puramboke. There are no tamarind trees existed in R.S.Nos.134, 144, 133, 140, 143 and 135 (Old S.No.129/2 to 7). In such old S.No.129/1 to 7 correlated to R.S.Nos. There are no tamarind trees existed in R.S.Nos.134, 144, 133, 140, 143 and 135 (Old S.No.129/2 to 7). In such old S.No.129/1 to 7 correlated to R.S.Nos. 136, 134, 144, 133, 140, 143 and 135 are all included during the Revision Survey in V.No.27, Kallaparai Village limits only which is only under the Revenue Administration and No part of old S.No.129 was included in Karuthamalai reserve Forest which is under the Forest Department administration. Hence 1100 tamarind trees which are said to be Bilmuktha patta in S.No.129 is not the fact of things. A copy of the statement recorded by the Village administrative officer, Asanampet group during my inspection along with the Staff. Kallaparai Village “A” Register of the above fields are submitted for favour of kind perusal." 14. It transpires that one K.C.Varadharajulu Naidu filed O.S.No.747 of 2007 on the file of District Munsif, Vellore arraying the District Collector, Vellore District, Vellore as 1st Defendant and other 4 Defendants seeking the relief of permanent injunction restraining the Defendants therein, their men, agents, servants etc. from interfering with the Plaintiff's right to cut and remove dead and wind fallen trees, to new trees, to enjoy usufructs, etc., in S.No.129 (Old), Kallaparai Village, Asnampet Post, Odugathur Forest Range, Vellore Taluk and District, as Bilmuktha pattadar. Further, the Plaintiff therein has also sought a relief of mandatory injunction against the Defendants to grant permit to take the usufructs out of the plaint schedule described property. Also that, the Plaintiff in O.S.No.747 of 2007 filed I.A.No.1761 of 2007 on the file of District Munsif, Vellore seeking the relief of temporary injunction restraining the Respondents, their agents, from interfering with the Petitioner's (Plaintiff's) peaceful possession and enjoyment of the schedule described property and to grant mandatory injunction permitting the petitioner to take out the usufructs out of the schedule described property till the disposal of the suit and to grant ad interim injunction on the same line till the disposal of the application. 15. It is to be borne in mind that a Licence is defined under Section 52 of the Indian Easements Act, 1882 as a right to do or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right be unlawful, and such right does not amount to an easement or an interest in the property. A licensee is not entitled to notice to quit before eviction as per decision Lall V. Dunlop Rubber Company, (1968) 1 SCR 23 . A licence is not assignable under Section 56 of the Indian Easements Act, 1882. 16. It cannot be forgotten that if the document creates an interest in the property, it is a lease; but if only it permits another to make use of the property, of which legal possession continues with the owner, it is a licence, as opined by this Court. 17. In this connection, this Court pertinently points out the decision of the Hon'ble Supreme Court in State of Orissa V. Ram Chandra Dev, AIR 1964 Supreme Court 685 & 686, wherein it is held as follows: "Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. Though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the Article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226. Thus, ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may after exercising its right, seek to recover possession of the property without filing a suit. Where, therefore, in such a case the grantee moves the High Court under Art.226 for a writ against the State and the High Court comes to the conclusion that the question of title cannot be tried in the writ proceedings, it follows that no right can be postulated in favour of the grantee on the basis of which a writ can be issued in their favour under Art.226. Further, in such a case the High Court is not justified in issuing a writ to protect the right of possession of the grantee, because mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Art.226 where the grant has been resumed. AIR 1957 Orissa 80, Reversed. AIR 1952 SC 12 , Rel.on." 18. Further, a Licensee has no transferable interest. In fact, in licence only personal right is intended to be created. That apart, the question whether a transaction or lease or a licence is to be decided on the basis of Pleadings or Deeds. 19. In so far as the filing of Writ of Mandamus is concerned, by an individual, it is to be remembered that Mandamus is a Command issued to direct any person to whom it is addressed. As a matter of fact, in the absence of an enforceable legal rights, no mandamus can be issued, in the considered opinion of this Court. To seek the relief of Writ of Mandamus, the existence of a legal right and the obligation of the public authority to fulfil the same as on date of petition are on the requisite factors, as opined by this Court. 20. Continuing further, a Mandamus will not be issued against an order refusing to grant licence or lease or an order cancelling a licence after the period to which the licence was granted or applied had expired. A Writ of Mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned. Certainly, the relief of Mandamus can be refused based on the availability of effective, efficacious, alternative remedy under a relevant Statute. 21. It is to be noted that in Writ Proceedings (summary in nature) under Article 226 of the Constitution of India, the disputed questions of fact would not be gone into. Certainly, the relief of Mandamus can be refused based on the availability of effective, efficacious, alternative remedy under a relevant Statute. 21. It is to be noted that in Writ Proceedings (summary in nature) under Article 226 of the Constitution of India, the disputed questions of fact would not be gone into. Also that, when the said disputed facts required an oral and documentary evidence to be adduced by the parties, then, it is for the concerned parties to approach the competent forum in the manner known to law and in accordance with law and to seek appropriate remedy thereto. 22. It is to be noted that Section 3 of the Tamil Nadu Forest Act, 1882 visualises the manner in which any land can be constituted a Reserve Forest. To justify the State Government's action in constituting the leased land as reserve forest, the requisite factor to be taken into consideration is that the Government is the owner or the Government has proprietary rights in or over it. Added further, the Government is entitled to whole or any part of the forest produce of the land. In fact, under Section 4 of the Act, the State Government have been conferred with the statutory powers to issue notification whenever it has been decided to constitute any land as a reserve forest. Moreover, a notification under Section 4 of the Forest Act is required to be published in the Gazette and unless it is so published, it is of no effect, as per decision Mahendra Lal V. State of U.P., AIR 1963 SC 1019 . The effect of a notification issued in terms of Section 4 of the Indian Forest Act is that new rights cease to accrue and the State Government acquires certain rights over the notified land. It is to be remembered that the notified land does not become a reserved forest merely because notification was issued in that behalf and the land is comprised therein. In reality, it does not become until a notification under Section 20 of the Act is published. 23. One cannot brush aside an important fact that 'A tree patta holder' is a known occupier of the land coming within the ambit of Section 6 of the Tamil Nadu Forest Act as per decision reported in Vol.XII Madras Series 203 (Full Bench) (Reference Under Section 39 of Act V of 1882). 23. One cannot brush aside an important fact that 'A tree patta holder' is a known occupier of the land coming within the ambit of Section 6 of the Tamil Nadu Forest Act as per decision reported in Vol.XII Madras Series 203 (Full Bench) (Reference Under Section 39 of Act V of 1882). Also that, rights to lands do not get extinguished under Section 9 of the Indian Forest Act for not claiming within time, if the land does not fall under Section 3 of the said Act, as per decision The State of U.P., V. Mahant Avaidh Nath, AIR 1977 Allahabad 192. 24. In this connection, this Court relevantly points out that the 2nd Respondent in the counter in paragraph 5 had, categorically, inter alia, stated the following: "5. ... It is further stated that in the past, by mistake, the Forest Department as well as the Revenue Department had permitted the removal of the tamarind trees from the Reserve Forest and this mistake was mainly due to the fact that the old Survey No.129 part of which was outside the Reserve Forest, was included in the Reserve Forest. The Survey numbers outside the Reserve Forest was reclassified and renumbered as S.Nos.134, 136, 144 133, 140, 143 and 135. This is confirmed by the letter of the Assistant Director, Survey and Land Records, Vellore, addressed to the Collector on 25.04.1986. The petitioner can not take advantage of the mistake committed by officials and these can not be treated as precedents." 25. Further, in paragraph 7 of the said counter, it is averred by the 2nd Respondent that the Petitioners are not the Legal heirs of Venkataswami, Ryot - the original allottee, who was granted the right of collection of Tamarind from old S.No.129 under the Government Gazette Notification dated 21.05.1885. Added further, the 2nd Respondent, in the counter at paragraph 8, had also stated that the legal heir certificate produced by the Petitioners does not mention the name of one Varadharajulu Naidu at all and also that the said person filed a case in the District Munsif Court, Vellore in I.A.No.1761 of 2007 in O.S.No.747 of 2007. 26. Added further, the 2nd Respondent, in the counter at paragraph 8, had also stated that the legal heir certificate produced by the Petitioners does not mention the name of one Varadharajulu Naidu at all and also that the said person filed a case in the District Munsif Court, Vellore in I.A.No.1761 of 2007 in O.S.No.747 of 2007. 26. More importantly, the prime plea taken on behalf of the 2nd Respondent is that the right granted to Venkataswami Ryot is not a hereditary or perpetual one but an individual right at the time of publication of the Gazette Notification dated 21.05.1885. 27. In view of the above qualitative and quantitative discussions and also this Court, taking note of the fact that the Petitioners and the Respondents have taken a divergent view in the subject matter in issue and as such, this Court comes to an inevitable conclusion that between them some factual disputes have arisen and they are to be investigated and sorted out in a complete and comprehensive manner before the appropriate statutory authority/forum in the interest of both parties. 28. As far as the present case is concerned, this Court comes to an inescapable conclusion that the Petitioners cannot seek the relief of Writ of Mandamus to be issued, in directing the 2nd Respondent to grant permission to them to collect tamarind fruits from Odukathur Range, Karuthamalai Reserve Forest, Vellore District in Old S.No.129, basing upon Bilmuktha trees patta granted to Venkatasami Ryot, because of the simple reason that as against the order refusing to grant licence or refusal of permission to collect tamarind trees fruits or an order cancelling the licence after the period for which the licence were granted or applied has expired would not give rise to such a Writ, in the considered opinion of this Court. Moreover, there is no statutory duty imposed upon officer concerned to grant the permission sought for by the Petitioners in the present Writ Petition. Added further, the Petitioners have no judicially enforceable right in seeking the Writ of Mandamus in the present Writ Petition. In short, there is no existence of legal right and equally there is no obligation of the Respondents to fulfil the same as on date of filing of the present Writ Petition, in the considered opinion of this Court. Added further, the Petitioners have no judicially enforceable right in seeking the Writ of Mandamus in the present Writ Petition. In short, there is no existence of legal right and equally there is no obligation of the Respondents to fulfil the same as on date of filing of the present Writ Petition, in the considered opinion of this Court. To put it succinctly, in the absence of any enforceable legal right, the Petitioners cannot seek the relief of Mandamus as against the Respondents and as such, the present Writ Petition seeking the relief of Mandamus is per se not maintainable. That apart, the right to collect tamarind fruits in Old S.No.129 granted originally in favour of Venkataswami is only an individual right. Moreover, it is pleaded on behalf of the Respondents that as part of the Old S.No.129 is within the Reserve Forest and the Revenue Officials cannot hold any control over the area, which is exclusively within the possession, control and supervision of the Forest Department, it passes beyond one's comprehension as to how the Petitioners stake a claim that they are entitled to enter into the area in Old S.No.129 [which is within the Karuthamalai Reserve Forest, which has become a wild life sanctuary] where intruders/outsiders are not permitted. Even otherwise, in view of the disputed facts involved between the parties, on that count also, the Writ Petition filed by the Petitioners is not prima facie maintainable, in the considered opinion of this Court. Viewed in that perspective, the Writ Petition fails. 29. In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. It is made clear that the dismissal of the Writ Petition will not preclude the Petitioners herein to assail the orders of the 2nd Respondent/District Forest Officer, Vellore District dated 16.03.2011 (relating to their Petition dated 08.03.2011), as aggrieved persons, before the Competent Statutory Higher Authority/ Competent Forum envisaged under relevant statute, if so advised, by taking further course of action to its logical end, as the case may be, in the manner known to law and in accordance with law. In that event, this Court grants liberty to the Petitioners to raise all factual and legal pleas before the appropriate/ competent authorities concerned and the authorities are directed to provide adequate opportunities to the Petitioners by adhering to the Principles of Natural Justice and later on, to pass a reasoned, speaking order on merits by looking into the representation of the Petitioners dated 08.03.2011 in a fair, objective and dispassionate manner and also by specifying the outline of process of reasoning, within a period of eight weeks from the date of receipt of copy of this order. It is open to the respective parties to let in oral and documentary evidence to project their version of the case/respective stand by taking factual and legal pleas (i) whether the Bilmuktha Patta originally granted to Venkataswami Ryot, being an individual right, could be inherited as heritable, perpetual or continuous/assignable one; (ii)touching the aspect of suit O.S.No.747 of 2007 on the file of District Munsif Court, Vellore and to apprise as to the result of O.S.No.747 of 2007, by producing Judgment/Decree copy and certainly those materials/files should be taken into consideration by the 2nd Respondent at the time of passing of the orders within the time adumbrated by this Court. Consequently, connected Miscellaneous Petition is closed.