Sankara Menon vs District Collector, Palghat and Others

Vaidialingam, J.—This is an application for the issue of a writ of mandamus under Art. 226 of the Constitution to the 1st and 2nd respondents herein to grant permission to the petitioner for selling an item of property namely, Survey No. 205/14 under the power vested in the Collector under the Madras Preservation of Private Forests Act, 1949. The facts leading up to the filing of this application are as follows :-

In pursuance of a decree in O.S. 29 of 1940 on the file of the Subordinate Judge''s Court of Ottapalam, the Survey number which is the subject of this application as well as certain other items of properties were brought to sale in pursuance of directions of court by the commissioner to work out the partition decree.

One of the items comprised in the said sale is the present S. No. 205/14 which is the subject of this application in this Court. This item, as well as the other items come within the ambit of the Madras Preservation of Private Forests Act 1949 and there is also no dispute that the necessary sanction of the Collector under S. 3 (1) of the said Act was obtained by the commissioner who was authorised to sell the properties by the court. In pursuance of the said sanction of the District Collector, this item as well as other items were sold and this item in particular, along with certain other items were purchased by the applicant before me. Later on, he filed an application before the District Collector under S. 3 (1) of the said Act for permission to sell portions of S. No. 205/14. The first respondent herein, by order dated 12--11--56, marked as Ext. B in these proceedings, declined to grant the permission asked for in respect of both the survey numbers namely, S. No. 181 and S. No. 205/14. It is not necessary for me to consider the reasons given by the Collector regarding S. No. 181 because there is no dispute that, that part of the order of the (sic) Collector has been set aside in favour of respondent, the Government of Kerala, by order dated 12--8--57, Ext. D, allowed the appeal so far as S. No. 181 was concerned, but confirmed the order of the Collector regarding S. No. 205/14 on the same ground given by the Collector. The order of the Government, the second respondent also shows that a civil suit is pending in the Ottapalam Sub-Court relating to the jenmom right of the applicant of the properties and therefore, the Government considers that it is not correct to sanction the request of the petitioner regarding this item.

In this application, under Art. 226, Mr. N. Sundara Iyer, Learned Counsel for the applicant, has contended that the order of the Collector as confirmed by the second respondent is vitiated by material irregularity in the exercise of the powers under the Madras Preservation of Private Forests Act 1949--Madras Act XXVII of 1949.

The learned Government Pleader has also quite fairly stated that the Government and the Collector took up that attitude in rejecting this application because of the knowledge that they obtained regarding the dispute about the title of the petitioner regarding this survey number.

It is necessary to consider what exactly is the duty of the District Collector in dealing with the applications under this Act for permission to sell, mortgage, lease or otherwise alienate forests.

The preamble to the Act states that the object is to prevent indiscriminate destruction of private forests and interference with customary and prescriptive rights therein and for certain other purposes.

Section 2(b) of the Act defines an ''owner'' as follows:

(2)(b) ''owner'' in relation to a forest includes a mortgagee, lessee or other person having right to possession and enjoyment of the forest.

Therefore, under the definition of an ''owner'' in this sub-clause, it is clear that even a person having a right to possession and enjoyment of the forests in an ''owner'' within the meaning of this Act.

In this case, there is no dispute that prima facie the applicant, as the purchaser in a court sale under a permission given by the District Collector u/s 3, has become a person having a right to possession and enjoyment of the forests apart from being an owner otherwise in law.

Section 3 provides for obtaining the sanction of a District Collector regarding certain transactions mentioned therein. It provides that no owner of any forest shall without the previous sanction of the District Collector sell etc., the whole or any portion of the forest.

Section 3(2) also gives us an idea as to the reason behind the restriction (sic) owner of the forest and the term ''owner'' itself, as mentioned earlier, has been defined in section 2(b). Once he is satisfied that at the time when he files this application, the applicant is an ''owner'' within the meaning of this definition also, in my opinion the District Collector is bound to grant the permission asked for unless he sees reason to reject the same on any other ground valid in law.

In this case, the reason given by the District Collector and also the Government on appeal is that the title of the petitioner is being challenged in a civil proceeding referred to by them. In my opinion, it is not open either to the first respondent or to the second respondent to take this into consideration in rejecting the application of the petitioner on this ground.

Mr. N. Sundara Iyer also mentioned in the course of his arguments that his client has now succeeded in the suit O.S. 400/56, District. Munsiff''s Court, Ottapalam. But as I have already stated in the earlier portion of my judgment, this has no bearing about the issue of a permit u/s 3 by the District Collector. In this view, the order of the first respondent and the 2nd respondent so far as S. No. 205/14 is concerned, are set aside and the first respondent is directed to take up all the applications filed by the petitioner u/s 3 of the; Act and dispose of them in the light of the observations contained in this judgment, as expeditiously as possible. No order as to costs.