S. Pujahari, J@mdashAll these four writ petitions have been filed by the respective petitioners under Articles 226 and 227 of the Constitution of India assailing the order under Annexure-15 passed by the Divisional Forest Officer, Rairakhol Division, opposite party No. 1. Since all the writ petitions involve common question of facts and law, they were heard together and are disposed of by this common order. For convenience, the facts stated in W.P.(C) No. 11520 of 2014 are taken up for consideration. Be it noted that the facts in all the four writ petitions are identical and the impugned order is common to all the writ petitions i.e., Annexure-15. According to the petitioner, he applied for grant of Timber Transit Permit on 02.03.2010 under Annexure-2 for removal of trees standing over the plots indicated therein. The petitioner is the recorded owner of the said plots. It appears that a joint verification was conducted and report thereof was submitted to the D.F.O. Rairakhol Division on 11.03.2011, basing upon which the application for T.T. permit was rejected by the D.F.O. on 08.04.2011 vide Annexure-6. The writ petition filed by the petitioner challenging Annexure-6 was disposed of on 10.05.2011 requiring the petitioner to prefer an appeal before the Appellate Authority who was also directed to dispose of the appeal within a period of two months. The appeal filed by the petitioner before opposite party No. 2 was disposed of vide order dated 29.07.2011 under Annexure-7 with the following directions:--
"1. The impugned order passed by the Divisional Forest Officer, Rairakhol Division on 8.4.2011 is set aside as the ground mentioned by the D.F.O., Rairakhol Divn. Are not strictly applicable in case of the tree growth standing in the private land.
2. The Divisional Forest Officer, Rairakhol Division is directed to conduct Joint Verification in recorded Plot No. 508, 793, 460/852 of Khata No. 40 of Mouza- Dangapathar as per the rule prescribed therein.
3. On completion of Joint Verification other procedures are to be followed to complete the formalities to issue T.T. permit within the time limit prescribed in Rule 7 of the Orissa Timber and Other Forest Produce Transit Rules, 1980."
2. It further appears that the D.F.O., Rairakhol Division instead of acting in terms of the order of the Appellate Authority, has passed an order dated 03.11.2011 vide Annexure-8 requiring the Tahasildar, Rairakhol to furnish certain information indicated therein. Challenging the same, the petitioner filed W.P.(C) No. 30795 of 2011 which was disposed of by order dated 15.12.2011 setting aside the order dated 03.11.2011. In the selfsame order passed by this Court, the D.F.O. was directed to comply with the order of the Appellate Authority from the stage of joint verification and was also directed to dispose of the application in accordance with Rule-7 of Odisha Timber and Other Forest Produce Transit Rules, 1980 (for short "the Rules").
3. Subsequent to the order dated 15.12.2011 was passed by this Court, the D.F.O. fixed 19.03.2012 for joint verification which was however conducted on 10.01.2013. On completion of the joint verification, a report thereof was submitted on 13.11.2013 under Annexure-11 series. Thereafter, the D.F.O. wrote a letter on 24.12.2013 vide Annexure-12 to the Tahasildar requiring him to make certain compliances and sought information with regard to the earlier joint verification report dated 11.03.2011. Accordingly, compliances were made and the earlier joint verification report dated 11.03.2011 was supplied. On receipt of the joint verification report vide Annexure-11 series and subsequent compliances, the D.F.O. has passed an order under Annexure-15 refusing to grant T.T. permit on the reasoning that the plots adjoin Siaripani P.R.F. and Sagamalia Reserve forest and the applied plots look like forest inasmuch as the plots are full of sal trees which were naturally grown and, therefore, any non-forest activities in the forest require prior permission of the Central Government as visualized in Section 2 of the Forest Conservation Act. The D.F.O. having held thus directed that the applicant may seek prior permission of the Central Government for removal of the trees over the applied plots. Challenging this order passed by the D.F.O., the present writ petitions have been filed and the said order has been enclosed as Annexure-15 in all the writ petitions.
4. The Divisional Forest Officer has filed separate counter affidavits in all the writ petitions. However, the contents of the counter affidavit are one and same in all the writ petitions. In the counter affidavit so filed, it is admitted that the applied plots stand recorded in the name of the petitioners and the plots in question are private plots belonging to the petitioners. It is stated in the counter affidavit that the earlier joint verification report dated 04.04.2011 was merely an inspection report and not a joint verification report as stated in the writ petition. However, it is stated that basing on the materials available in the joint verification report vide Annexure-11 series and subsequent compliances made vide Annexures-13 and 14, the impugned order vide Annexure-15 has been passed. It is also admitted in the counter affidavit that the earlier order rejecting the application for T.T. permit vide Annexure-6 has been set aside by the Appellate Authority vide Annexure-7. It is also not disputed that this Court vide order dated 15.12.2011 has directed the D.F.O. to comply with the order of the Appellate Authority and the D.F.O. was directed to dispose of the application in accordance with Rule-7 of the Rules. However, it is stated that the petitioner had applied for the non-forest activities in the plots and the applied plots for removal of tree growth attracts the provisions of Forest Conservation Act. It is stated that the impugned order was passed basing on the materials available in the joint verification report.
5. The petitioners have filed rejoinder in each of the cases controverting the stand taken in the counter affidavit. The petitioner has specifically stated that the earlier report dated 04.04.2011 was a joint verification report and not an inspection report as stated in the counter affidavit. According to the petitioners, placing reliance on the said report dated 04.04.2011, application for T.T. permit was rejected vide Annexure-6 which later on was set aside by the Appellate Authority. Therefore, the earlier report dated 04.04.2011 is nothing but a joint verification report. It is also stated in the rejoinder that in view of the finding recorded by the Appellate Authority that the plots in question being private plots, Forest Conservation Act would not apply. It is also stated that no sooner the D.F.O. receives the joint verification report vide Annexure-11 series, D.F.O. was required to pass orders on the application for T.T. permit instead of seeking compliances as has been done by the D.F.O. vide Annexures-13 and 14. According to the petitioners, by issuing such letter vide Annexures-13 and 14, the D.F.O. made an endeavour to bring the earlier joint verification report for consideration which is impermissible and no reliance can be placed on the same.
6. I have heard the learned counsel for the petitioners as well as the learned counsel for the State. I have also perused the materials available on record.
7. Undisputedly, the petitioners are the recorded owners in respect of the plots, for which application for T.T. permit was made and the applications are pending since the year 2010. It is also not in dispute that the earlier order rejecting the application for T.T. permit was set aside by the Appellate Authority as would appear from Annexure-7. Despite the appellate order, opposite party No. 1 passed orders vide Annexure-8 requiring the Tahasildar to furnish certain informations indicated in that letter which was also set aside by a Bench of this Court in the earlier writ petitions filed by the petitioners. Thereafter, a fresh joint verification was undertaken and a report thereof was submitted to the D.F.O. vide Annexure-11 series. From a bare reading of Clause (d) of sub-rule (8) of Rule-7 of the Rules makes it clear that the D.F.O. on receipt of the joint verification report shall scrutinize the same whereafter would communicate the results of the joint verification to the applicant. Therefore, the conclusion is inescapable that the D.F.O. was required to consider the joint verification report alone and not any other material for passing appropriate orders on the application for T.T. permit. But, it appears, the D.F.O. on receipt of the joint verification report vide Annexure-11 series has communicated a letter to the Tahasildar vide Annexure-12 requiring him to submit the earlier joint verification report submitted pursuant to an inspection conducted by the Revenue Inspector and Range Officer on 11.03.2011 obviously making a reference to the earlier joint verification report dated 04.04.2011 vide Annexure-5 series. It needs no emphasis that the said joint verification report was taken into consideration by the D.F.O. while rejecting the application for T.T. permit and, therefore, was not further available to be pressed into service. Be that as it may, the earlier report having been made available, the impugned order vide Annexure-15 has been passed. The finding recorded in the impugned order was that the applied plots adjoin Siaripani P.R.F. and Sagamalia reserve forest and the applied plots look like forest. But, a perusal of the joint verification report vide Annexure-11 series would show that the findings as recorded in the impugned order are not available in the joint verification report. On the contrary, the joint verification report vide Annexure-11 series dated 13.11.2013 states as follows:--
"With reference to the above cited memos, I along with the R.I., Charmal, Range Officer, Charmal, Forester Bansajlal, Forest Guard, Dangapather have demarcated the plots of the following recorded tenants and submitted the enumeration list signed by all the recorded tenants and R.I., Charmal, Range Officer, Charmal, Forest Bansajlal, Forest Guard, Dangapather and Revenue Supervisor, Rairakhol and has been duly countersigned by the undersigned."
Save and except the aforesaid, no other finding as reflected in the impugned order is available in the joint verification report. Therefore, the D.F.O. was in error in recording the findings contrary to the materials available in the joint verification report. The D.F.O. having reached such erroneous conclusion was of the view that the plots being adjacent to Siaripani P.R.F. and Sagamalia reserve forest, any non-forest activity thereon would require prior permission of the Central Government under Section 2 of the Forest Conservation Act.
8. Now, let us examine as to whether the D.F.O. was justified in requiring the petitioners to seek prior permission of the Central Government under the Forest Conservation Act on the reasoning that the plots adjoin Siaripani P.R.F. and Sagamalia reserve forest. In the counter affidavit, it is specifically stated at paragraph-22 that the joint verification was conducted on 10.01.2013 and the Tahasildar, Rairakhol submitted the joint verification report on dated 13.11.2013 which obviously refers to the joint verification report vide Annexure-11 series. As already stated, the joint verification report vide Annexure-11 series does not contain any statement that the applied plots adjoin Siaripani P.R.F. and Sagamalia reserve forest. In absence of such statement in the joint verification report which was required to be considered, it is difficult to reach at a conclusion as has been reached by the D.F.O. in the impugned order vide Annexure-15. Therefore, the finding to that extent is contrary to the materials on record and the D.F.O. is not justified in coming to the conclusion that the applied plots adjoin Siaripani P.R.F. and Sagamalia reserve forest.
9. Learned counsel for the petitioners have placed reliance on a decision of the Hon''ble Apex Court in the case of
