Sikri, J. - (1.) This appeal by certificate granted by the Judicial Commissioner, Himachal Pradesh, is directed against his judgment allowing a petition filed by the respondents and issuing a writ of mandamus directing the Divisional Forest Officer, Sarahan Forest Division, and the Chief Conservator of Forests, Himachal Pradesh -hereinafter referred to as the appellants - to issue or get issued the necessary permission for felling the trees and the transit pass, in respect of certain khasra numbers.
(2.) In order to appreciate the points raised by the learned counsel for the appellants, it is necessary to set out the relevant facts. Land measuring 27 bighas and 16 biswas comprised in khasra Nos. 452/1, 453, 453/1, 40, 100 and 440 and situated in village Kadiali, Tehsil Theog, District Mahasu, belonged to Government and was under the tenancy of Moti Ram. He filed an application under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 - hereinafter referred to as the Act-and was granted proprietary rights in the land by the Compensation Officer by order dated August 30, 1957. Provisional compensation was assessed at Rs. 62.56 P. The Compensation Officer held that "as the applicant is a cultivating tenant over the aforesaid land he is entitled to acquire right, title and interest of the said land owner on payment of Rs. 62.56 as compensation which should be deposited." On September 9, 1957, a certificate of ownership was granted to Moti Ram on his depositing Rs. 62.56 Moti Ram died and the land was mutated in favour of his wife Smt. Besroo and his daughter Smt. Rupi. The respondents applied for permission to sell the trees on their land, and the Divisional Forest Officer by order dated July 18, 1958, permitted them to sell the trees from their land on certain conditions. On November 15, 1958, the respondents deposited Rs 1267/-13 P. as government fee, but the Divisional Forest Officer failed to give clear orders for felling the trees and taking out the converted timber from the said land. The Chief conservator Officer, by letter dated July 12, 1961, informed the respondents that the matter was being inquired from the Conservator of Forests Simla Circle. Thereupon, not hearing anything further, the respondents flied a petition under Art. 226 of the Constitution.
(3.) It was urged before the Judicial Commissioner, on behalf of the Divisional Forest Officer that the respondents had no interest in the trees standing on their land as the trees were not 'land' as defined in Section 2 (5) of the Act, and that the Compensation Officer was not competent to grant, and in fact, did not grant proprietary rights in the trees to the deceased Moti Ram. The learned Judicial Commissioner, following Vijey Kumari Thakur vs. H. P. Administration, AIR 196l Him Pra 32, held that the appellants were estopped from contending that the respondents had no interest in the trees. He further held that the respondents were granted permission to sell the trees standing on their land and they had in fact entered into an agreement to sell to a third party and they had deposited Rs. 1267.13 P. and had thus acted to their detriment. As stated already, the learned Judicial Commissioner allowed the petition and issued a writ of mandamus. With certificate granted by the Judicial Commissioner the appellants have filed this appeal.;