Atikur Rahman vs Naib Tahsildar Baihar

P.V. Dixit, C.J.—This is an application under Articles 226 and 227 of the Constitution for the issue of a writ of mandamus directing the opponents Nos. 1 to 3 to release and to deliver to the Petitioner certain timber seized by the said opponents in the following circumstances.

In 1961 the Petitioner entered into a contract for the purchase of timber of certain trees standing on the holding of opponent No. 4 Deoria, a tenure-holder as defined in the Madhya Pradesh Protection of Scheduled Tribes (Interest in Trees) Act, 1956. On 10th September 1960 the Petitioner had made an application seeking the permission of the Collector, Balaghat, for the removal of the timber. On this application the Collector made an endorsement saying that no permission was necessary. On the same date (10th September 1960) Deoria also applied to the Collector for permission to fell the timber trees growing in his holding and to remove the timber saying that u/s 179 of the Madhya Pradesh Land Revenue Code he had acquired full rights in the trees in his holding and the Madhya Pradesh Protection Scheduled Tribes (Interest in Trees) Act, 1956, had no applicability as he was not entering in to any contract with any person for the sale of timber and that he himself would fell the trees and remove the timber and sell it. On Deoria''s application also the Collector made an endorsement saying that no permission was necessary. In September-October 1961 when the timber trees were felled and the timber was being removed thereafter by the Petitioner in a truck it was seized by the Naib-Tahsildar, Baihar, on the ground that the felling of the trees and removal of the timber was without the permission of the Collector. The Petitioners contention is that no permission for the cutting of the trees and removal of the timber was at all necessary under the Madhya Protection of Scheduled Tribes (Interest in Trees) Act, 1956; and that the Naib-Tahsildar was bound to give effect to the Collector''s order that no permission was necessary.

In the return filed on behalf of the opponents Nos. 1 to 3 it has been stated that the endorsement made by the Collector on the Petitioner''s and Deoria''s applications that no permission was necessary only meant that no permission was necessary for the removal or transport of timber in circumstances stated in the applications made by them; that the timber which the Petitioner was removing was in pursuance of a contract which the applicant had entered into with Deoria for the purchase of timber; that u/s 3 of the Act of 1956 no such contract could be entered into without the Previous permission of the Collector; and that as no such permission of the Collector had been obtained by Deoria, the seizure of the timber by the Naib-Tahsildar was in order.

This application must be granted. The mainstay of the opponents Nos. 1 and 3 is the Act of 1956. But no provision of this Act is of any assistance to the said opponents in supporting the seizure of the timber. The M. P. Protection of Scheduled Tribes (Interest in Trees) Act, 1956, is a measure enacted for the protection of Scheduled Tribes from exploitation in the matter of transfer of their interest in specified trees. This is evident from the preamble of the Act. Section 3 of the Act runs as follows:

(1) No contract entered into after the commencement of this Act by a tenure-holder belonging to a Scheduled Tribe for the sale of number of the specified trees in his holding shall be valid in so far as it relates to specified trees without the previous permission in writing of the Deputy Commissioner.

(2) The Deputy Commissioner shall not grant such permission unless he is satisfied that the consideration for the contract is adequate and unless the amount of consideration is paid in full to the tenure holder in his presence.

It will be seen that this provision does not prohibit the felling of timber trees or the sale of timber of the trees growing in a holding of a tenure-holder. It does not even prohibit a tenure-holder absolutely from entering into a contract with any person for the sale of timber of specified trees in his holding. All that it does is to provide that no contract between a tenure-holder and a person for the sale of timber of the specified trees shall be valid in so far as it relates to specified trees without the previous permission of the collector. Sub-section (2) of Section 3 empowers the Collector withhold permission unless lie is satisfied that the monetary consideration for he contract is adequate and the amount of consideration has been paid in full to the tenure-holder in his presence. If these conditions are satisfied, then the Collector cannot refuse to grant permission for the contract. Section 3 is clearly intended for the benefit of the tenure-holder and for securing him the highest possible consideration for the contract and the actual payment of the amount of consideration. A contract entered into contrary to the provisions of Section 3 without obtaining the Collector''s permission being invalid may not be enforceable by either party in a Court of law: but that does not give any right to the authorities to seize the timber of the specified trees felled under an invalid con-tract u/s 3. Section 3 itself does not give any authority for seizure; nor is there any other provision in the Act giving that authority. The only consequence of the felling of any specified trees or removal of timber of any such trees from a holding under an invalid contract is that the person felling the trees or removing the timber is liable to punishment u/s 8 of the Act which runs as follows:

S. (1) Any person who fells any specified trees in or removes the timber of any specified trees from a holding in pursuance of a contract which is invalid u/s 3 or in contravention of any order passed by the Deputy Commissioner u/s 4 shall, on conviction, be liable to rigorous imprisonment which may extend to six months or to a fine which may extend to two thousand rupees

(2) The Magistrate may order that the whole or any part of the fine so imposed may be paid to the tenure-holder as compensation.

This provision also does not empower the revenue authorities to seize the timber of any specified trees if the felling of the specified trees and removal of the timber thereof is under a contract which is invalid u/s 3. Reading Sections 3 and 8 together it is clear that if a tenure-holder enters into a contract with a person for the sale of timber in specified trees in his holding without the permission of the Collector and if thereafter the purchaser fells the specified trees and removes the timber thereof, the timber cannot be seized though the person felling the trees and removing the timber can be prosecuted u/s 8. The Act of 1956, therefore, does not afford any justification for the Naib-Tahsildar''s action in seizing the timber purchased by the Petitioner from Deoria.

Learned Government Advocate suggested that the Madhya Pradesh Land Revenue Code, 1959, permitted the Naib-Tahsildar to seize the timber in the circumstances of the present case. He was, however, unable to point out to us the specific provision which overrides the Act of 1956 and gives to the Naib-Tahsildar the authority contended for. We do not find any provision in the Code on which justification for the action of the Naib-Tahsildar can be rested.

For all these reasons this petition is allowed, and the (sic)opponets Nos. 1 and 3 are directed to release the timber seized from the applicant and to deliver its possession to him. The Petitioner shall have costs of this application from the opponents Nos. 1 to 3. Counsel''s fee is fixed at Rs. 50. The outstanding amount of the security deposit shall be refunded to the Petitioner.