P.A.Choudary, J.:-

(1) Writ appeal no. 566 of 1977 was disposed of on 9th november. 1977 with a direction to the district collector, bast godavari. "if the forest department is unable to remove the standing tret growth within two months thereafter, the collector shall have the tree growth removed through his own agencies and credit the amount realised to the account of each of the petitioners in proportion to their shares. We have no doubt that the collector, east godavari, will bestow personal attention in the matter of removal of the standing tree growth on the lands assigned to the petitioners. " although this direction was issued on 9th november, 1977 with a solemn exp ession of hope by the bench that the collector, east godavari, will bestow his personal attention, it is regrettable that nothing has been done by the district collector, east godavari so far. The present writ petition (w. P. No. 3834 of 1978) has therefore been filed by the petitioners for a direction to the 2nd respondent d. F o kakinada to issue transit permits in form ii for transporting of timber and fuel from the petitioners' patta lands under rule 5 of the andnra pradesh forest produce transit rules, 1970. It may be noted that the patta lands to which reference has been made in the present writ petition are the same lands from which the forest growth was directed to be removed by the collector, east godavari by a division bench of this court in the aforesaid writ appeal no. 566 of 1977. La view of the earlier directions issued by the beach, one would have expected the district collector, east oodavari to take expeditious and appropriate steps for the removal and transport of tree growth from the lands assigned to the petitioners; but unfortunately he has not done for over a period of one year. I am aow told that the collector could not carry out the directions of the bench became the lands which were assigned to the petitioners are situated in the reserved forest area. If this were the correct position and if that is considered as sufficient justification, the collector, east oodavari, should have applied for and obtained appropriate orders of review front the division bench. The division bench order clearly proceeds on the basis that the tree growth was standing on the patta lands assigned to the petitioners. If this basis of assumption is incorrect as it is now suggested, if becomes the duty of the collector to take appropriate steps to bring it to the notice of the court: but instead he has simply slept over the matter at least to the extent it relates to the carrying out the orders of this court the least that one can say about this conduct is that it is unfortunate. In fact under strict law this is nothing short of disobtdience by the district collector of the clear directions issued by this court. However, inasmuch as the prayer which has been made now in the present writ petition is inconsistent with the order made by this court in the aforesaid writ appeal no. (w. A. No. 566 of 1977) , i cannot obviously grant this prayer. The present prayer in the writ petition is based on the assumption that the petitioners are entitled to cut and remove the tree growth of the lands assigned to them whereas according to the earlier directions given by this court on 9th november, 19 7 it is the collector of east godavari who should take steps to remove the standing tree growth on the lands assigned to the petitioners. If i now make an order in terms of the prayer in the present writ petition, that will clearly run counter to the earlier directions given by this court. Fur her the fact that toe lands which were assigned to the petitioners are in the reserved forest area, is also brought to my notice. I cannot therefore make any further orders on this petition in favour of the petitioners. However, i refer this matter to the division bench so that the petitioners might obtain appropriate orders. Dutta mohan rao, for petitioners. Government pleader for industries on behalf of respondent. In pursuance of the above order, this petition came on for hearing before a division bench consisting of lakshmaiah and madnava rao, jj. The judgment of the division bench was delivered by lakshmaiah, j. : - a decision of a division bench of this court consisting of the hpn'ble mr. S. Obul reddi, chief justice (since retired on 9th april, 1978) and the hon'ble mr justice p, chennakesav reddi, rendered as early as on 9th november, 1977 containing the following direction, is. Even after a lapse of two years, yet to be obeyed by the forest and revenue departments. "we therefore direct the collector, east godavari to consider and examine the feasibility of the proposal suggested by him in his letter to the conservator of forests within one month from the date of the recepit of this order. If the forest department is unable to remove the standing tree growth within two months thereafter the collector shall have the tree growth removed through his own agencies and credit the amount realised to the account of each of the petitioners in proportion to their shares. We have bo doubt that the collector, east godavari, will bestow personal attention in the matter of removal of the standing tree growth on the lands assigned to the petitioners. "

(2) The one month period, allowed to the collector, expired long back. The forest department did not remove the standing tree growth within two months thereafter. The lands assigned to the petitioners are all identifiable and the tree growth thereon is ascertainable. The collector was directed to have the standing tree growth on the lands assigned to the petitioners removed through his own agencies and to credit the amount realised to the account of each of the petitioners in proportion to their shares. He hat not done either.

(3) It is that situation that occasioned the invoking of the jurisdiction of this court by the petitioners under article 226 of the constitution, for the issuance of an appropriate writ, particularly one in the nature of a writ of mandamus, directing the district collector and the district forest officer, east godvari district, at kakinada,

"to issue transport permit in form ii for transporting of timber and fuel from patta lands under rule 5 of the andhra pradesh forest produce transit rules, 1970"

.

(4) The district collector as well as the district forest officer did not exhibit any anxiety as their counter - affidavits file disclose, to implement the decision of the division bench of this court rendered on 9th november, 1977. Nor did they make any request to this court for extension of time to implement the aforesaid decision. On the other hand, they seem to be of the view that that decision need not have to be obeyed as according to them the assignment of the lands in favour of the petitioners was bad and that the petitinners are not entitled to the tree growth on the lands assigned to them.

(5) While referring this writ petition to a division bench for disposal, our learned brother justice p. A. Choudary, as per his order dated 23rd january, 1979, observed in connection with the aforesaid direction dated 9th november, 1977, thus:

"although this direction was issued on 9th november, 1977, with a solemn expression of hope by the bench that the collector, east godavari, will bestow his personal attention, it is regrettable that nothing has been done by the district collector, east godavari so far. The least that one can say about this conduct is that it is unfortunate. In fact under strict law, this is nothing short of disobedience by the district collector of the clear directions by this court."

(6) The aforesaid observation of our learned brother mr justice p. A. Choudary is quite in accordance with authority, principle and judicial dicta, some of which, we propose to refer to.

(7) In e. T. Mazdoor union v. Aligarh municipality the allahabad high court aade the following observation:

"it is necessary to point out that orders of the high court and, for the matter of that, of all the courts of law, are to be implemented and acted upon with promptitude. If their implementation in unduly delayed, it would amount to showing scant respect to the court concerned and its judicial process, which would obviously be a serious contempt of the court."

(8) Justice ismail of madras high court (as he then was) in m. H a. R. And co. V. Dy. Commercial tax officer made the following observation:

"i emphasise and it is worth emphasising that no officer of the government, however high or exalted he may be, can take upon himself the responsibility of judging the correctness or validity of an order of any court and if he honestly and bona fide in the discharge of his function feels that the order is erroneous or requires any modification, the only remedy open to him is to approach that court by way of review or modification or a higher court by way of appeal or otherwise. Apart from that, it is not open to him to take upon himself the responsibility of judging the order and take any action contrary to or inconsistent with the sams on the basis of his own judgment if once an officer is permitted or allowed to do any such thing, that will mean the end of to very principle of rule of law on the basis of which the entire fabric of our democratic society has been constructed."

(9) Chief justice jaganmohan reddi, speaking for a division bench of this court in k. Kutumba rao v. Venkata subba rao, observed thus : "so long as there is an order by the court which requires compliance, not only parties but even third parties who are not parties to the suit and who have notice of the same will be liable for contempt for the disobedience of such orders or for obstructing the execution of the same. Whether the order is valid or irregular unless it is vacated, it has got to be obeyed. Oswald in his book "contempt of court" 3rd edition at page 107 says: an order irregularly obtained cannot be treated as a nullity, but must be implicitly obeyed, until by a proper application, it is discharged, and the case is the same where the order is alleged to have been improvidently made. In narain singh v. S. Haridayal singh it has been held that so long as the injunction order has not been vacated or modified by the court granting it, or has not been reversed on appeal, no matter how unreasonable and unjust the injunction may be, the order must be obeyed. Violation of the order of injunction cannot be excused on the ground that though the court acted within its jurisdiction, the order that it passed was erroneous. The court in contempt proceedings will not inquire into merits of the case in which the injunction was issued " proceeding further, the learned chief justice observed thus: "where the police are required to render assistance in executing the orders of court, they must diligently and actively assist - any it is one of their duties which they can neglect to perform only at the risk and peril of exposing themselves to censure and punishment in so far as respondents 1 to 3 are concerned they are contumacious and they have caused obstruction to the execution of the orders of the court. "

(10) Kumari g. Srinivasulu v. State of andhra pradesh is a case where a direction given by the high court, the learned government pleader communicated to the authority concerned who were reluctant to implement the same till a copy of the judgment was made available for his perusal. In that connection, justice parthasarathi made the following observation : "notwithstanding this specific direction and the communication of the direction to the authority concerned, it is distressing to note that there has been want of compliance with the direction. " proceeding further, the learned judge observed at page ilr thus : ''whether the authority has the copy of the judgment before it or not, the writ has to be obsyed aid disobedience will bring in its turn consequences which are well - known. A wilful or intentional non - compliance or postponement of compliance is nothing short of contempt of court and the consequences of such action or omission need not be over - emphasized. It is necessary that the public authorities to whom writs are issued should bear this in mind. "

(11) It is not necessary to burden this judgment with further citations. Suffice it to conclude it with the observation of the supreme court which, speaking through rajagopala ayyangar, j. , on behalf of the bsnch consisting of five judges in state of bihar v. Sonabali kumiri and made thus :

"it is of the essence of the rule of law that every authority within the state including the executive government should consider itself bound by and obey the law. It is fundamental to the system of polity that india has adopted and which is embodied in the constitution that the courts of the land are vested with the powers of interpreting the law and applying it to the facts of the cases which are properly brought before them. If any party to the proceedings considers that any court has committed any error, in the understanding of the law or in its application, resort must be had to such review or appeals as the law provides. When once an order has been passed which the court has jurisdiction to pass, it is the duty of all persons bound by it to obey the order so long as it stands, and it would tend to the subversion of orderly administration and civil government, if parties could disobey orders with impunity. If such is the position as regards private parties, the duty to obey is all the more imperative in the case of governmental authorities. If disobedience could go unchecked, it would result in orders of courts ceasing to have any meaning and judicial power itself becoming a mockery. When the state government obeys a law, or gives effect to an order of a court passed against it, it is no doing anything which detracts from its dignity, but rather, invests the law and the courts with the dignity which are their due, which enhances the prestige of the executive government itself, in a democratic set - up. If the government had deliberately intended to disobey the order of the court, because for any reason they considered it wrong, their conduct deserves the severest condemnation. If on the other hand it was merely a case of inadvertence and arose out of error, nothing would have been lost and there was everything to be gained, even in the matter of the prestige of the government, by a frank avowal of the error committed by them and an expression of regret for the lapse, and it is lamentable that even at the stage of the hearing before us, there was no trace of any such attitude."

judicial process and contempt of court.

(12) Decisions of the courts shall have to be obeyed by the authorities concerned. Obey they must.

(13) Any person or authority including government obliged to implement decision of the courts cannot take upon themselves the onerous responsibility of sitting in judgment over the correctness or otherwise of such decisions as a justification either, for not implementing them or for delayed implementation ot the same.

(14) The attitude of the governmental authorities either in being reluctant or in refusing to obey and implement the decision of the courts, is subversive of judicial process besides being annihilative of the very concept of rule of law constituting thus gross contempt of court.

(15) As a matter of fact, the learned government pleader did not dispute the prepositional position as forthcoming from the above, but his endeavour was to explain the reason for the delay.

(16) We have therefore no hesitation in sharing the concern expressed by our learned brother, p. A. Choudary, j. While referring this matter to the division beach, when he said, referring to the conduct of the district collector in not having done anything with respect to the directions issued by the division bench of this court on 9th november, 1977 that

"this conduct is. Unfortunate. In fact, under strict law, this is ncthing short of disobedience by a district collector of the clear directions of this court"

, we are therefore of the firm view that the directions given by this court on 9th november. 1977, the authorities shall have to implement.

(17) The petitioners, sixteen in number, belong to schedule tribes and they are all landless poor. They earn their livelihood as labourers and by podu cultivation in forest areas. Pursuant to the government policy of rehabilitating poor tribals by assigning lands to them, they have been assigned acre 5 - 00 of land in bandava village, hamlet of nulakamaddi village, east godavari district. D - form pattas were granted to them. Those pattas, inter alia, contemplated that the tree growth other than sandalwood, would vest in the assignees and the assignees should remove the tree growth and bring the land under cultivation within three years from the date of the grant.

(18) Petitioners commenced to lay pathways and to cut the tree growth. When they removed the forest growth, transit permits wers necessary and the petitioners therefore applied to the district forest officer for the necessary transit permits under rule 5 of the andhra pradesh forest produce transit rules. 1970. Earlier, the forest range officer, addathigala had arranged for enumeration of tree growth in the land with the help of the petitioners and they spent large sum of money for this enumeration and laying of pathways.

(19) The forest officer did not grant transit permits though the revenue authorities also addressed him in the matter and requested him to grant transit permits to the petitioners as there was long delay in complying with the application for the grant of transit permits which was causing the petitioners irreparable prejudice, they moved the high court of andhra pradesh for the issue of a writ directing the district forest officer, kakinada to issue transit permits, in writ petition no. 2977 of 1977 on 18th august, 1977. That with petition was admitted. The revenue department did not file any counter or contest the assertion of the petitioners that the tree growth has also been assigned to them.

(20) The district forest officer filed a counter questioning the assignment. An interlocutory application for interim direction was ordered after a contest and the high court directed the district forest officer to issue transit permits by its order dated 12th september, 1977. In compliance therewith, transit permits were issued but subject to certain conditions which the petitioners were not in a position to comply with, one of those conditions being that each of the petitioners should deposit rs. 3,000 as security. That imposition of condition, according to the petitioners, was intended only with a view to frustrate the directions of the high court by imposing the condition which the poor petitioners could not comply with. When that aspect of the matter was brought to the notice of the high court, the high court directed the very writ petition should be disposed of.

(21) The learned single judge of the high court who dealt with the matter held that it was not open to the district forest officer to question the assignment, but however, held, according to the petitioners, on an incorrect interpretation of the 'd' form patta, that the assignment did not include the trees on the land. Ultimately the learned judge directed the district forest officer, kakinada to consider and examine the feasibility of the proposal to exploit the tree growth through the forest department and credit the amounts to the account of the petitioners towards the investment cost of developing the land.

(22) On appeal in w. A. No. 566 of 1977 the division bench of the high court modified that order. The division bench directed the collector, east godavari district, as follows:

"we therefore direct the collector. East godavari, to consider and examine the feasibility of the proposal suggested by him in his letter to the conservator of forests within one month from the date of receipt of this order. If the forest department is unable to remove the standing tree growth within two months thereafter, the collector shall have the tree growth removed through his own agencies and credit the amount realised to the account of each of the petitioners in proportion to their shares. We have no doubt that the collector, east godavari district, will bestow personal attention in the matter of removal of the standing tree growth on the lands assigned to the petitioners. With the aforesaid directions, the writ appeal is dismissed."

the collector, east godavari, or any authority did not initiate any action to comply with the direction given by the divkion bench in writ appeal no. 566 of 1977. The petitioners approached the authorities often for getting their timber and fuel removed and sell them in market, so as to enable them to bring the land under cultivation. The authorities did not pay any heed to their request.

(23) The petitioners asserted that they had the right in them recognised both with respect to the land assigned as well as the tree growth found on the same. That was established and confirmed by his court in the above writ appeal. But they are unable to enforce their rights within a period of three years for bringing them under cultivation as stipulated period in o form patta is fast approaching and that the non - compliance of the condition of the pattas would render cancellation of pattas themselves.

(24) They have further stated in paragraph 7 of their affidavit thus : "as already pathways were laid by us, for transporting the timber aad fuel and the enumeration of the tree growth, and and also other preliminary works were completed long back by investing huge amounts, i submit that we have invested the amounts by disposing off our properties and also obtaining loans and at present we have no other source of living. We also may add further that much injury and damage is caused to us after assignments of lands due to the harassment and frustration caused by the authorities. It is submitted that the authorities will not remove the tree growths and allow us to bring the land in cultivation as can be seen by the past experience. Even the forest department did not come forward to take up the task of removing the tree growths though the district collector sanctioned rs. 10,000 for removing the trees soon after the assignments of the lands to us. Thus it is very clear from the attitude of the authorities that they are not inclined to comply with the directions of the division bench. " "it is submitted that the authorities are not justified ia paying a deaf - ear to our grievances and especially when they are aware that these asssigments are made pursuant to the policy of the government to rehabilitate the tribals and to put them to profitable avocations and any restrictive interpretation of the grant of patta would bi destructive of the very policy the forest department itself initially accepted our rights and directed us to have the tree enumerated and footpaths laid for the purpose of issuing transit permits. As such some thousands of rupees were expended by us for the above purposes. In these circumstances, the attitude of the respondents in not removing the tree growths or permitting us to remove the tree growths is mala fide and with an ulterior motive. The authorrities are taking advantage of impecunious conditions and depriving us of our legitimate rights. "

(25) It is under these circumstances, the petitioners invoked the extraordinary jurisdiction of this court for the issuance of a writ of mandamus directing the district forest officer, kakinada, east godavari, to issue transit permits in form ii for transporting of timber and fuel from their patta lands under rule 5 of the andhra pradesh forest produce transit rules, 1970.

(26) Sri b. Mallareddy, the district forest officer, east godavari, kakinada, filed a counter - affidavit, sworn on 3rd day of october, 1916, practically not disputing the factual situation.

(27) It is stated in paragraph 2 of the counter thus: - "i submit that the petitioners submitted an application dated 30th november, 1976, to the revenue divisional officer, peddapuram to recommend to the forest authorities for issue of transit permits regarding the forest growth in survey nos. 71. Of nulakamaddi and bandavada hamlet of nulakamaddi villages on the ground that in respect of the said lands "d" form pattas have been issued by the deputy tahsildar, yellavaram. The revenue divisional officer, peddapuram, has recommended the said applications of the petitioners in his letter (l) 192 of 1977, dated 10th july, 1977 to ths district forest officer, kakinada, (respondent no. 2 herein) for issue of transit permits to transport the trees growth situated in the villages of nulakamaddi and bandavada hamlet of nulakamaddi of yellavaram taluk for purpose of bringing the land under cultivation. I submit that the forest department is unaware of the assignment made by the deputy tahsildar, yellavaram till 10th january, 1977. As a matter of fact assignment of lands in the vicinity of reserve forest, abutting the reserve forest is prohibited under b. S. O. 15 para 35 (iii) under the said board standing order 15, if any assignment is contemplated, the collector has to consult the district forest officer and consider his objections, if any. N the instant case, the revenue department did not follow the procedure laid down under board standing orders. I submit that the lands for which the revenue divisional officer, peddapuram recommended for transit permits were in mutta village and consisting 8,146, valuable forest trees. As such the matter was brought to the notice of the conservator of forests, logging project circle, rajahmundry in reference. No 766 of 1977. A. 11. Dated 8th may, 1977, for instructions. The matter was also brought to the notice of the collector. Kakinada in ref. No. 766 of 1977 a. 11. Dated, 18th september, 1977, for clarification regarding the right of the petitioners over the the tree growth on the patta lands and the rules under which the assignment was made. "

(28) As regards the orders passed by this court in w p. M. P. No. 4740 of 1977 in w. P. No. 2977 of 1977, dated. 12th september, 1977, directing the district forest officer, (2nd respondent herein) , to issue the permits within two weeks from the date of receipt of the order, it is stated in paragraph 3 that in compliance to court's directions, transit permits were issued on 21st september, 1977, imposing certain conditions under rule 5 (6) of the andhra pradesh forest transit rules, 1970 acquiring the petitioners' to furnish security worth about rs. 4,000 each. It is stated :

"meanwhile, on the letter of the conservator of forests, logging project circle, rajahmundry the collector, kakinada, suggested for extraction of the tree growth available in the said village survey numbers departmentally, and credit the amount so realised by such sale to the account of the tribals."

reference was also made to the collector's etter dated 19th ausust, 1977, in paragraph 4 of the counter.

(29) In paragraph 4 of the counter. It is stated that during the course of the clearance of the boundary lines of dummakonda reserve forest, surprisingly it was noticed that the areas for which the pattas were issued fall in dummakonda reserve forests notified by forest department in no. 489 dated 13th october, 1942. The collector was informed on 2nd february, 1978, and the joint inspection of the area was taken up on 4th february, 1978 consisting of team members of revenue, forest and survey departments. Consequently, proposal for the cancellation of the pattas were contemplated to be initiated.

(30) It is noted in paragraph 8 of the counter - affidavit with regard to the observations of the inspection party thus :

"the present taluk surveyor yellavaram who accompanied us in this joint inspection has shown this area to be unreserve forest with reference to his record."

(31) It is also stated in paragraph 9 that the petitioners requested for the cancellation of the pattas granted to them and for fresh assignment of land nearer to their villages, which of course, was denied by the petitioners in their reply affidavit.

(32) It is stated ultimately in paragraph 10 us : -

"from the facts submitted above, the assignment was made in respect of lands which were long back included in dummakonda reserve forest. Therefore the collector, kakinada, was requested for cancellation of the assignments and to grant fresh assignment of equal extent of land to the petitioners at a suitable place. The matter is pending with the revenue department."

(33) The same stand taken by the district forest officer is found reiterated in the counter - affidavit filed by sri s narayana, the collector, east godavari district the first respondent herein, sworn to on 15th january, 1979.

(34) A reply affidavit was filed by petitioner no. 1 stating that the material averments in the counter - affidavit were not correct. It is stated in paragraph 3 of the reply affidavit thus: "the land under assignment is not situated in the reserve forest as alleged in the counter. The validity of the assginment is concluded by the judgment of this honourable court in w. P. No 2977 of 1977, as confirmed in w. A. No. 566 of 1977 and hence it is res judicata. It is not open for the respondent to raise the plea of validity of assignment on grounds mentioned in paras. 4 and 5 as they are estopped from raising these points. They ought to have raised all these pleas in w. P. No. 2977 of 1977. They have not raised these pleas, hence they are barred by constructive res judicata. " it is stated in para. 5 of the reply affidavit thus: "it is submitted that neither of the petitioners have agreed for giving up their rights under this assignment, after having spent huge amounts for laying the pathways and enumeration of the trees in the assigned lands. " in paragraph 6 it is stated: "the averments in paragraph is relates to the localisation of the patta lands and the alleged discoveries are all invented for purposes of defeating the claim of the petitioners for the tree growth or the value of the tree growth. The said averments are not relevant for deciding the issues in this writ petition. " jn para. 7 it is stated: - "the land under assignment in s nos. Is not included in the reserve forest or the contention that it is included in the forest department notification no. 489 dated 13th october, 1942, is not correct. The inclusion or exclusion of a land as a reserve forest must be contained in a notification by the government. There must be a final declaration made under section 15 of the andhra pradesh forest act (madras forest act as repealed) made by the forest settlement officer no such proclamation was relied upon in the counter - affidavit. Hence the contention that the said land was found in a notification by the forest department is not sufficient to establish that these lands form part of reserve forest area. I respectfully submit that these wild allegations are only intended to deter us from bringing the land into cultivation by utilising the value of the tree growth as directed by this hon'ble court. " sri d. Mohana rao, the learned counsel appearing for the petitioners, contends that the validity of assignment in favour of the petitioners was already upheld by the learned judge in w. P. No. 2977 of 1977 and that decision was confirmed by the division bench in writ appeal, and therefore it is not open to the authorities coacerned - the respondents herein - to question the assignment. This position was very seriously disputed by the learned government pleader. Assignment - validity. - the first question there that arises for consideration is whether the assignment of lauds in favour of the petitioners, as evidenced by 'd' form pattas can be questioned in these proceedings.

(35) The case of the petitioners was that they are all landless poor labourers belonging to schedule tribes. Pursuant to the government policy of rehabilitating the poor tribals by assigning lands, these 'd' form pattas were granted in their favour and that aspect of the matter is not disputed by the respondents in their counter - affidavits.

(36) Our learned brother, jeeavan reddy, j. While disposing of writ petition no. 2977 of 1977, adverting to the objections raised by the forest department that the grant was vitiated on account of non - compliance with b. S. O. No. 15 (35) , observed thus:

"so far as the objection of the district forest officer based on b s. O. No. 15 (35) is concerned it does not deserve any consideration herein for the reason that if the forest deparment is aggrieved by any such assignment the proper course for it is to request the appropriate authority to cancel the assignment according to the board standing order if such a course is permissible thereunder. So long as the assignment stands, the forest authorities cannot deny factum of the said assignment on the ground that b. S o. No. 15 (35) is violated in the matter of the said assignment."

(37) The objection relating to b. S. O. No. 15 (35) was that the land forming the subject - matter, is in the vicinity of the reserve forest and as such it should not have been assigned in view of the decision of our learned brother that so long as the assignment stands, the forest authcfities cannot deny the factum of the said assignment which was allowed to become final and it is not open for the authorities concerned to question the existence as well as the validity aspect of that assignment we hold that the assignment in favour of the petitioners of the lands in question cannot be denied or doubted or questioned.

(38) We have to proceed, therefore, for the purpose of disposing of this case, on the assumption that there is an assignment of the land in favour of the petitioners. Constructive res judicata. - the next contention raised by the learned counsel for the petitioners is that on the previous, occasion, the authorities questioned the validity of the assignment on the ground that the land in question was situated in the vicinity of the reserve forest and as such it is not assignable under b s. O. No. 15 (35). In the present writ petition, the stand taken by the authorities is not definite. It is not open for them to say that the assignment is bad both for the reason that the land in question was within the vicinity of the reserve forest and that the same is situated within the reserve forest. Our learned brother, jeevan reddy, j. , while disposing of the writ petition, noted the contention of the petitioners thus:

"according to the petitioners the lands are not situated either in the reserve forest or in the protected forest."

what might and ought to have been taken in the previous writ petition, if found to have not been taken but when attempted to be taken in the subsequent writ petition, the authorities are confronted with a plea of what is called constructive res judicata, a doctrine which is conceived in the interests of the public policy for the purpose of securing finality to judical decisions and in the interest of administration of justice

(39) Devilal v. Sales tax officer is a case where the doctrine of constructive res judicata was applied by chief justice gajendragadkar to a case where in a second writ petition the petitioner attempted to raise a point which might and ought to have been taken by him in the previous writ petition. In that context, the learned chief justice held at page 1153 of the report thus:

"at the hearing of this appeal, he has filed another petition asking for leave from this court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many as writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata."

(40) The plea taken in the present writ petition by the respondents is that the land assigned is situated within the reserve forest area. That was denied by the petitioners. It was noted even in the report of the inspection party that the present taluk surveyor, yellavaram who accompanied the party in the joint inspection has shown this area to be unreserve forest with reference to his record. At the beginning the plea taken in the previous writ petition was that the land is situated in the vicinity of the reserve forest. Now the stand was altered and the land was now shifted from outside the reserve forest into the heart of the reserve forest both of which were denied. On these disputed questions of facts the learned government pleader requests this court not to proceed on the assumption that the assignment is valid, though the learned government pleader did not say specifically, yet the purpose of his argument, in the context that was averred in the counter - affidavits filed by both the respondents leads to that conclusion and the contention based thereupon, we are of the opinion, is unsound and untenable. We are, therefore, of the opinion, that the doctrine of constructive res judicata is applicable to the facts of the case as contended by the learned counsel for the petitioners and we hold that the respondents are prevented on account of that doctrine from raising the questions of situs as a circumstance invalidating the assignment.

(41) Doctrine of promissory estopptl. Sri mohana rao, the learned counsel for the petitioners; then contended that the petitioners are entitled to invoke the doctrine of promissory estoppel. The learned counsel contends that the petitioners belong to schedule tribes. They are all landless poor. They earn their livelihood as labourers and by podu cultivation in forest areas.

(42) The framers of the constitution and the makers of law acting under the constitution made special provisions for protecting and safeguarding the interests of these tribals. Millions of rupees were set apart in the five year plans in that direction and on account of the incomplete and recalcitrant attitude of the authorities concerned all that amount could not be spent for them. A part of that amount was allowed on account of that attitude to remain unspent and un - utilised.

(43) Pursuant to the government's policy to rehabilitate poor tribals, they are assigned ac. 5 - 00 of land each in bandava village hamlet of nulakamaddi village. East godavari district. 'i' form pattas were duly granted to them under the board standing ortders. Petitioners were induced to believe that the patta granting authorities have power to grant patta with respect to the lands assigned and placing reliance upon that assurance, pathways were laid for transporting the timber and fuel. Enumeration of tree growth and other preliminaries were completed long back by investing huge amounts. The petitioners have invested these amounts by disposing of their properties and by obtaining loans and at present they have no other source of living.

(44) The expression "promisory estoppel" has not been defined by any statute either here in india or elsewhere. But, there occurs in halsbury's laws of england, 3rd edition, volume 15, at page 175, under the caption "promissory estoppel", this passage: "where one party has, by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but, he must accept their legal relations subject to the qualification which he himself has so introduced. This doctrine, which is derived from a principle of an equity in 1877, has been the subject of considerable recent development. It differs from estoppel properly so - called in that the representation relied upon need not be one of present fact. "

(45) Whereas an estoppel proper is founded on a representation as to an existing matter of fact, promissory estoppel is founded on a representation with regard to an assurance as to future conduct.

(46) The modern doctrine of promissory estoppel has had its foundation in the three following cases : hughes v. Metropolitan railway co. , birmingham and district land co v. London and north western railway co. ; central london property trust v. High trees house ltd.

(47) The position as regards this doctrine was summed up by a division bench of this court of which one of us (lakshmaiah, j.) is there in b. Subrahmanyam and co v. State.

"i. The modern doctrine of promissory estoppel has become the most powerful and flexible instrument in the realm of our administrative law. Ii. The government cannot claim immunity from the operation of that doctrine. Iii. That doctrine is available both against the government as well as against their delegates or agents. Iv. Whereas the common law doctrine of estoppel is founded on a representation as to an existing fact, the doctrine of promissory estoppel is founded on a representation with regard to an assurance as to future conduct. The latter enlarges the scope of the former and subsumes within its ambit not merely statements of fact but also promises as well. V. Unlike its common law counter part viewed merely as a rule of evidence, the doctrine of promissory estoppel, will have the effect of creating substantive rights against the representative and thus it can be viewed as a rule of substantive law. Vi. A representation of fact or intention on which the doctrine is founded if intended to be acted upon and acted upon becomes actionable. The claim for the relief depends upon that representation which constitutes the cause of action. Vii. The representation, be it of promise, or intention or future conduct, on which this doctrine of promissory estoppel is founded is susceptible of generating enforceable promises and binding contractual obligations, even where there is no consideration, such as at common law would have supported the promises and obligations."

(48) The doctrine of promissory estoppel was applied by our supreme court in the celebrated decision of indo - afghan agencies case.

(49) In century spinning and manufacturing co. Ltd. V. Ulhasnagar municipal council, the supreme court held that the doctrine of promissory estoppel was applicable against public authorities like municipal council.

(50) The above two decisions were referred to and approved in the year 1977 by our supreme court in radha krishna agarwal v. State of bihar where it was pointed out that these two were the cases where

"it could be held that public bodies or the state are as much bound as private individuals are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities."

(51) Justice bhagwati, dealt with this doctrine of promissory estoppel rather exhaustively in m. P. Sugar mills v. State of uttar pradesh. The learned judge at page 649 of the report observed thus :

"it would, therefore, be seen that there is no authoritative decision of the supreme court which has departed from the law laid down in the celebrated decisions in the indo - afghan agencise case and the century spg. And mfg. Co's case. The law laid down in these decisions as celeberated and expounded by us continues to hold the field."

(52) In the same case, the learned judge repelling the contention put forth by the state that the doctrine of estoppel has no application where the promisee did not suffer any detriment by acting on a representation made by the government, held at page 651 of the report thus : "we do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show the the suffered detriment as a result of acting in reliance on the promise. But we may make it clear that if by detriment we mean injustice to the promisee which would result if the promisor were to recede from his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. " the learned judge referred to the famous passage from the judgment of dixon, j. In the australian case of grundt v. Great boulder ply. Gold mines ltd. In support of the aforesaid proposition and proceeded thus: "it would, therefore, be correct to say that in order to invoke the doctriie of promissory estoppel it is enoujh to show that the promises has acting in relia ice on the promise, altered his position and it is not necessary for him to further show that he has acted to his detriment. " the government was, therefore, bound on the principle of promissory estoppel to make good the representation made by it. " in robertson v. Minister of pensions where the appellant was a serving army officer, who wrote to the war office regarding a disability of his, received a reply dated 8th april, 1941 stating: "your disability has been accepted as attributable 'to military service' " placing reliance upon that assurance, the appellant did not obtain any independent medical opinion. The minister of pensions later decided that the appellant's disability was not attributable to war service. It was contended on bshalf of the appellant that the war office's letter of 8th april. 1941, estopped the minister of pension from denying that the appellant's disability was attributable to war service and in answer to a question from justice denning as to how the minister of pensions was bound by letter from the war office, the learned counsel for the appellant contended that the letter binds the crown, and therefore it binds the minister of pensions which is a servant of the crown. Justice denning, accepting the contentions put forth on behalf of the appellant observed at page 232 of the report thus: "i come therefore to the most difficult question in the case, is the minister of pensions bound by the war office letter? i think he is. The appellant though, no , doubt, that, as he was serving in tht army, his claim to attributability would be dealt with by or through the war office. So he wrote to the war office. The war office did not refer him to the minister of pensions. They assumed authority over the matter and assured the appellant that his disability had been accepted as attributable to military service. He was entitled to assume that they had consulted any other departments that might be concerned, such as the ministry of pensions, before they gave him the assurance. He was entitled to assume that the board of medical officers who examined him were recognised by the minister of pensions for the purpose of giving certificates as to attributability. Can it be seriously suggested that, having got that assurance, he was not entitled to rely on it? in my opinion if government department in its dealings with a subject takes it upon itself to assume authority upon a matter with which he is concerned, he is entitled to rely upon it having the authority which it assumes. He does not know and cannot be expected to know, the limits of its authority. The department itself is clearly bound, and as it is but an agent for the crown, it binds the crown also; and as the crown is bound, so are the other department, for they also are but agents of the crown, and, through the crown, it binds the minister of pensions. The function of the minister of pension is to administer the royal warrant issued by the crown, and he must so administer it as to honour all assurances given by or on behalf of the crown. In my opinion therefore the finding of the tribunal that the disability was not attributable to war service must be set aside. The war office letter is binding on the minister of pensions and he is bound to accept the disability as "attributable to military service" for the purposes of the royal warrant of 1940 that is as "due to war service" for the purposes of the royal warrant of 1946 (1.). "

(53) This decision was followed by court of appeal in wells v. Minister of housing and local government a decision of the chancery division.

(54) The supreme court of india also followed the decision of robertson case indo afghan agencies case and in in the latest decision of the supreme court by justice bhagwati in m. P. Sugar mills v. State of uttar pradesh.

(55) As master of rules, lord denning observed in wells v. Minister of housing and local government thus: "we were told that for many years the planning authorities, including the minister himself have written letters on the same lines as the letter of 1st march, 1963. It has been their practice to tell applicants that no planning permission is necessary. Are they now to be allowed to say that this practice was all wrong and their letters were no effect i do not think so. I take the law to be that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid. Thus in robertson v. Minister of pensions an assurance (that colne robertson's disability was accepted aad attributable to war service) was held binding on the crown, even though it was given independently by the war office instead of the ministry of pensions. Aad in howell v. Falmouth boat construction co. A defect in the licence (about the cocktail bar) was disregarded by the house of lords see page 848. " the facts of that case are: the appellants' wells occupied a site in a particular district which was used since 1931 as a builders' merchants' yard for the storage of concrete raw materials. They applied through their architect on 21st december, 1962 to the district council as the local planning authority for planning permission, enclosing plans of 'he proposed plant stating that "subject planning permission being obtained, by - law permission will be sought regarding details". On 1st march, 1963, the council engineer and surveyor replied to the architect "i am instructed to inform you that the works proposed can be regarded as permitted development under class viii of the town aad country planning development officer, and it is therefore not proposed to take any further action on your application. I note that you will be supplying by - law details in due course". The bite owners changed their minds as to the proposed plant and decided to build a plant 48 feet high. Their architect, assuming that this new proposal would be covered by the letter of 1st march, 1963, in respect of 27 feet 6 inches plant, applied on 30th december, 1963, on the appropriate form for by - law consent, enclosing a plan of the proposed 48 feet plant. The council on 23rd january, 1964, granted by - law consent, giving official notification. The architect told the site owners that they could safely go ahead and they thereupon constructed and put into use the 48 feet plant. In february, 1965, the local planning authority served on the site owners an enforcement notice requiring removal of the plant, and the site owners appealed to the minister on the grounds, under section 46 (1) of the town and country planning act, 1962, that: (a) planning permission ought to be granted. (b) that planning permission had been granted, and (c) that no planning permission was required in respect of the development. The site owners contended that either the application of 21st december, 1962 and the letter of 1st march, 1963 or the application of 30th december, 1963 and the form of 23rd january, 1964, constituted either a grant of planning permission for the erection of, respectively, the 27 feet 6 inches of the 48 feet high plant, or a determination under section 43 of that act that no planning permission was required.

(56) The minister decided not to grant permission for the retention of 48 feet plann and dismissed the plant. The site owners appealed asking for the case to be remitted to the minister for re - hearing and determination together with their opinion or directions of the court.

(57) The master of rules in the above case observed at page 1007 thus :

"on 21st december, 1962 the builders' merchants made in writing an application for planning permission. They made no written application for a determination under section 43. But that omission was a defect in procedure only. It did not prevent planning authority from considering the matter if they thought fit. If they decided that it was unnecessary, they were entitled to tell the applicants so. Once the planning authority determined that no planning permission was necessary, and told the applicants so, that was a determination within section 43, even though there had been no formal application before them for that purpose. I hold therefore, that the letter of 1st march, 1963 was a valid determination under lection 43 and as such it was irrevocable by the planning authority, just as is a planning permission i put it on the ground that the planning authority waived any formal application and determined the matter straight away. The planning authority are entitled to make a determination. Under section 43 without the necessity of a formal written application."

(58) In lever finance v. West minister l. B. C. (c. A.) the court of appeal speaking through lord denning, master of rules, observed thus: "if an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be. A good instance is the recent decision of this court in wells v. Minister of housing and local government. It was proved in that case that it was the practice of planning authorities, acting through their officers, to tell applicants whether or not planning permission was necessary. A letter was written by the council engineer telling the applicants that no permission was necessary. The applicants acted on it. It was held that the planning authority could not go back on it. I would like to quote what i then said 'it has been their practice to tell applicants that no planning permission is necessary. Are they now to be allowed to say that this practice was all wrong and their letters were of no effect? i do not think so. I take the law to be that a defect in procedure an be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid. So here it has been the practice of the local authority, and of many others, to allow their planning officers to call applicants whether a variation is material or not. Are they now to be allowed to say that that practice was all wrong? i do not think so. Ik was a matter within the ostensible authority of the planning officer, and, being acted on, it is binding on the council. " in a note prepared for modern law review, vol. 34 1971, j. M. Evans, observed in connection with the above case at page 335 thus: "the decision of the court of appeal in lever (finance) ltd. V. Westminster corporation appears to extend the limited circumstances in which a public authority may be estopped from exercising a statutory power by virtue of undertaking given by its officers. As a more general level it is another case in the current trend of decisions protecting the individual from sustaining loss as a result of maladministration by public authorities. "

(59) The position is succinictly summed up at page 26 under paragraph 24 of halsbury's laws of england, volume i, thus:

"circumstances may arise in which an assurance or representation of fact given by a public body or one of its officers to another person and relied on by that person will be held to preclude the body in question from denying its validity, or indeed its binding force, although offered otherwise than in a manner, or form prescribed by law"

(60) S. A. De smith in his judicial rview of administrative action, third edition, which has already become a classic in administrative law, observed at page 90 thus:

"whenever public bodies and officers, in their dealings with a citizen, take it upon themselves to assume authority on a matter concerning him, the citizen is entitled to rely on their having the authority that they have asserted if he cannot reasonably be expected to know the limits of that authority; and he should not be required to suffer for his reliance if they lack the necessary authority."

(61) D. J. Micklethwait in a note in 1971, vol. 87, "the law quarterly review," summed up the position referring to the above cases thus: "in robertson v. Minister of pensions denning j. (as he then was) , held that, on the principle of equitable estoppel, the crown was bound by an assurance given to a private individual by an officer who in fact had no authority give such an assurance he stated at to page 232 of his judgment that "in my opinion, if a government department, in its dealings with a subject, takes it upon itself to assume authority upon a matter with which be is entitled to rely upon it having the authority which to assumes" the story re - opens however in 1967, when lord denning decided as part of a majority in the court of appeal, wells v. Minister of housing and local government that developers were entitled to rely on a letter from a planning authority to the effect that planning permission was not required, notwithstanding that this decision had not been preceded by the appropriate application as required by the town and country planning act, 1962. Lord denning was able, perhaps surprisingly, to cite both the robertson and howell cases as authority for the proposition that "a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid. " the theme appears again in lever finance ltd. West minister (city) l. B. C. In this case, the architect for a firm of developers had obtained planning permission for a housing development in st. John's wood. He later wished to make some alterations and accordingly sent a revised plan to the planning authority, following this up with a telephoned enquiry as to whether further planning permission for the alterations was necessary. He was told by the planning officer that the alterations were not material and he accordingly went ahead with his building programme. It was found by bridge, j. At first instance that there was an established practice whereby the decision of a planning officer on questions of this sort could be acted upoa without any further application for planning permission being made. Local residents however reacted sharply when they saw the buildings going up and persuaded the planning authority to require the developers to obtain planning permission for the alterations. The firm applied, twice, permission was refused, twice, and it was resolved that an enfoccement notice should be issued. Lord denning, in a unanimous court of appeal, decided that the firm was entitled to rely, in view of the established practice, on the planning officer's assurance, notwithstanding that parliament entrusted such matters to the planning authority as such (section 64 of the town and country planning act, 1968 being held not to affect the issue) lord denning, in support of this decision, relied on the passage quoted above from his judgment in wells case. "

(62) Scheduled tribes and the constitution. - one of the objects sought to be achieved by the framers of the constitution is ushering in our welfare state achievament of social justice as the preamble to the constitution discloses.

(63) Sub - article (25) of article 366 of the constitution defines "scheduled tribes" to mean such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be scheduled tribes for the purposes of this constitution.

(64) Article 342 dealing with scheduled tribes provides that the president with respect to any state or union territory and where it is a state, after consultation with the governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this constitution be deemed to be scheduled tribes in relation to that state or union territory, as the case may be.

(65) As per sub - article (2) of the aforesaid article, the president has been given the power by law to include in or exclude from the list of scheduled tribes specified in a notification issued under - clause (1) any tribe or tribal community, but save as aforesaid a notification issued under clause (i) shall not be varied by any subsequent notification.

(66) The importance attached by the framers of the constitution to the scheduled tribes can be gauged by the founding fathers devoting a complete part, namely part x dealing with the scheduled and tribal areas arid consisting of two articles viz. Articles 244 244. Article 244 deals with administration of scheduled areas and tribal areas and provides that the provisions of the fifth schedule shall apply to the administration aad control of the scheduled areas and scheduled tribes in any state. Other than the states of assam and meghalaya.

(67) The fifth schedule makes provisions as to the administration and control of scheduled areas and scheduled tribes, part b of which deals with the general. As per clause (2) thereof, the executive power of a state extends to the scheduled areas therein as per clause (3) thereof, the governor of each state having scheduled areas therein shall annually, or whenever so required by the president, make a report to the president regarding the administration of the scheduled areas in that state and the executive power of the union shall extend to the giving of directions to the state as to the administration of the said areas.

(68) Clause (4) provides for the constitution of tribes advisory council with a duty cast upon that to advise on such matters pertaining to the welfare and advancement of the scheduled tribes in the state as may be referred to by the governor. Clause (5) deals with law applicable to scheduled areas.

(69) In this connection, we must bear in mind the contents of article 275 of the constitution which deals with grants from the union to certain states. That article provides, inter alia (1) "such sums" as parliament may by law provide shall be charged on the consolidated fuad of india in each year as grants - in - aid of the revenues of such states as parliament may determine to be in need of assistance, and different sums may be fixed for different states: provided that there shall be paid out of the consolidated fund of india as grants in - aid of the revenues of a state such capital and recurring sums as miy be necessary to enable that state to meet the costs of such schemes of development as may be undertaken by ths sta e with the approval of the government of india for the purpose of promoting the welfare of the scheduled tribes in that state of raising the level of administration of schaduled areas therein to that of the administration of the rest of the areas of that state.

(70) The five year plans gave a great impetus to the welfare activities of the tribals by making ample funds available for their implementation. Thus, the first five year plan provided rs. 39 crores for tribal welfare, the second plan allotted a total of rs. 47 crores and the third plan rs. 61 crores for the same purposes.

(71) For more concentrated welfare work for the benefit of tribals, "tribal development bloc" was created during the second five year plan. (from "the aboriginal tribes of india" by stephen fuchs). In the subsequent plans also, more amounts were allotted and allocated for the welfare of the scheduled tribes.

(72) Articles 330 and 332 provide for the reservation of seats for scheduled castes and scheduled tribes in the houses of people, legislative assemblies of the state.

(73) Article 335 deals with the claims of scheduled castes and scheduled tribes to services and posts. As per article 338, there shall be a special officer for scheduled castes and scheduled tribes to be appointed by the president. It shall be the duty of the special officer to investigate all matters relating to the safeguards provided for the scheduled castes and scheduled tribes under the constitution and report to the president upon the working of those safeguards at such intervals as the president may direct, and the president shall cause all such reports to be laid before each hiuse of parliament.

(74) As per article 33. The p resident may at any time and shall, at the exp iration of ten yean from the commencenaent of this constitution by order appoint a commission to report on the administration of the scheduled areas and the welfare of the scheduled tribes in the states. The executive power of the union shall extend to the giving of directions to a state as to the drawing up of and execution of schemes spscified in the direction to be essential for the welfare of the scheduled tribes in the state.

(75) A place of paramount importance is secured to the tribals under pirt iii of the constitution also. Article 15 of the constitution deals with the prohibition of discrimination on grounds of religion, racs, caste, sex or place of birth, and clause (4) thereof reads thus:

"nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provision for the advancement of socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes."

article 16 dealiug with equality of opportunity in matters of public employment, provides by clause (4) thereof, that nothing in that article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state.

(76) Article 19 provides for the protection of certain rights regarding freedom of speech, etc. Clause (5) of the aforesaid article provides that nothing in sub - clauses (d) , (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the state from making any law imposing, reasonable restrictions on the exercise of the right conferred by the said sub - clauses either in the interests of the general public or for the protection of the interests of any scheduled tribes.

(77) I may be convenient at this stage to refer to the provisions contained in board's standing order 15. S. B. D. 15 (3) (5) deals with maximum extent of land which may be assigned to a single individual as per this provision the maximum extent of land which may be assigned to a single individual shall be limited to 21/2 acres wet or 5 acre dry. The maximum extent of land to be assigned to each member of the scheduled tribes in the scheduled areas of the state is ac. 5 - 00 wet of ac. 10 - 00 dry.

(78) As per sub - paragraph (7) , nothing contained in any of the rules shall be held to debar government from disposing of land otherwise than under these rules at their discretion as heretofore.

(79) B. S. O. No. 16 by sub - para. (14) provides for the payment in standing trees, wells, buildings. As per that provision, the value of the tress standing on the land except those proved to have planted by him should be recovered from the successful applicant before final orders are passed. The assigning authority is allowed the discretion to collect either the market value or the value in accordance with the scales of seigniorage rates prescribed for the district under section 26 (b) of the andhra pradesh forest act) whichever is higher. If the applicant is unwilling to pay the valuation, the trees may be put up to auction subject to the condition that the auction - purchaser shall cut and remove them within a specified time, or if for any reason sale by auction is not considered desirable the valuation may be teduced; in cases of poverty the payment of the value may be remitted altogether.

(80) It is clear from this provision, that in the case of poor people, the payment of the value can be remitted altogether.

(81) Para. (10) of b. S. O. No. 15 deals with order of preference among the landless applicants. As per sub para. (3) thereof, preference shall be given to members of scheduled castes, scheduled tribes, scheduled caste converted christians and other backward classes in the assignment of waste lands at the disposal of the government.

(82) Article 46: we shall go back to part iv of the constitution dealing with the directive principles of state policy wherein article 46 provides for the promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker sections, which reads thus :

"the state shall promote with special care to the educational and economic interests of the weaker sections of the people, and, in particular, of the scheduled castes and the scheduled tribes and shall protect them from social injustice and all forms of exploitation."

(83) Directivprincifles. - interpretation. - in kesavananda bharathi's case, justice jaganmohana reddi made this following observation at page 1755:

"what is implicit in the constitution is that there is a duty on the courts to interpret the constitution and the laws to further the directive principles which under article 37 are fundamental ia the governance of the country."

(84) In the same report at page 1950, justice mathew, made the following observation:

"i can see no incongruity in holding, when article 37 says in its latter part it shall be the duty of the state to apply these principles in making laws' that judicial process is 'state action' and that the judiciary is bound to apply the directive principles in making its judgment."

(85) Justice v. R. Krishna iyer in mumbai kamgar sahhav abdlbhai made the following observation at page 1465 of the report:

"statutory interpretation, in the creative indian context, may look for light to the lodestar of pact iv of the constitution e g. , article 39 (a) and (c) and article 43. Where two judicial choices are available, the construction in confermity with the social philosophy of part iv has preference."

(86) Justice mathew, in state of kerala v. M. M. L. Thomas observed at pages 515 and 516 of the report : "not only is the directive principle embodied in article 46 binding on the law - maker as ordinarily understood but it should equally inform and illuminate the approach of the court when it makes a decision as the court also is 'state' within the meaning of article 12 and makes law even though "interstitially from the molar to the molecular. " "today, the political theory which acknowledges the oblignation of government under part iv of the constitution to provide jobs, medical care, old age pension etc. , extends to human rights and imposes an affirmative obligation to promote equality and liberty. The idea of a state with obligation to help the weaker sections of its member seems to have increasing influence in constitutional law. "

(87) The following observations were made by the supreme court in chandra bhavan boarding and lodging, bangalore v. State of mysore.

"the hopes and aspirations aroused by the constitution will be belied if the minimum needs of the lowest ot our citizens are not met."

(88) Justice v. R. Krishna iyer in state of karnataka v. Ranganatha reddi observed thus:

"the directive principles, being the spiritual essence of the constitution, must receive sweeping signification being our socio - economic magna carta quiddities apart."

(89) The following observation was made in jalan trading co. V. D m aney.

"we are satisfied that the restriction imposed by the bonus act in compelling the employer to pay the statutory minimum bonus even in years where there has been a loss sustained by the management is reasonable or in public interest within the meaning of article 19 (6) and 302. What is reasonable depends on a variety of circumstances, but what is important is that the directive principles of state policy in part iv of constitution are fundamsntal to the governince of the country. Therefore, what is directed as state policy by the founding fathers of the constitution cannot be regarded as unreasonable or contrary to public interest even in the context of article. 19 or 302. It follows that payment of bonus, being in implementation of articles 39 and 43 of the constitution, is reasonable."

(90) Judicial process - nature. - it is not out of place to refer to the concept of the judicial function as evolved by justice mathew, in kesavananda bharathi's case: "the judicial function is, like legislation both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the constitution only in the former respect. But that is a difference in degree only. From a dynamic point of view, the individual norm created by the judicial decision is a stage in a process beginning with the establishment of the first constitution, continued by legislation and customs, and leading to the judicial decisions. The court not merely formulates already existing law although it is generally asserted to be so. It does not only 'seek' and 'find' the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement. Both in establishing the presence of the conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law - creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general norms. Where the courts are entitled not only to apply pre - existing substantive law in their decisions, but also to create new law for concrete cases, there is a comprehensible inclination to give these judicial decisions the character of precedents. Within such a legal system, courts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term. Courts are creators of general legal norms. Lord reid said: 'there was a time when it was thought almost indecent to suggest that judges make law - they only declare it. Those with a taste for fairy tales seem to have thought that in some alladin's cave there is hidden the common law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words open sesame. But we do not believe in fairy tales any more. ' i do not think any person with a sense of realism believes today as blackstone did that the law declared by the courts has a platonic or ideal existence before it is expounded by judges. John chipman cray said that in the last analysis the courts also make our statute law and quoted the passage from the famous sermon of bishop hondly that whoever has absolute power to interpret the law, it is he who is the law - giver, not the one who originally wrote it. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment. Nobody doubts today that within the confines of vast spaces a judge moves with freedom which stamps his action as creative. 'the law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom. '

(91) To sum up. - (1) the decision of a division of bench of this court rendered on 9th november, 1977, directing the authorities, including the collector "to have the tree growth removed through his own agencies and credit the amount realised to the account of each of the petitioners in proportion to their shares" is binding upon the authorities and the same shall have to be implemented; the attitude of the governmental authorities either in being reluctant or in refusing to obey and implement the decision of the courts, is subversive of judicial process besides being annihilative of the very concept of the rule of law constituting thus gross contempt of court. (2) the assignment of the land and the grant of pattas in favour of the petitioners was all decided in the previous proceedings of this court in their favour and the same eannot be questioned in this writ petition. 'd' form pattas were granted to the petitioners on 28th june, 1976, under the boards standing orders. Para. 15 of boards standing order 15 provides for an appeal against the decisions in assignment cases to be preferred within 30 days of the date on which the original decision was pronounced or communicated. Para. 18 of boards standing order 15 deals with "revision" and provides that "the order of the authority making the assignment, if no appeal is presented or of the appellate authority if an appeal is presented is final and no second appeal shall be admitted. " there is a provision for revision to be availed of within three years. The remedies by way of appeal or revision were not availed of and the decision as regards assignment and grant of pattas has become final. (3) the authorities including forest department seemed to have been observed with their finding 8, 146 valuable forest trees in the land assigned, the ownership in which according to them, was not vested in the tribals. Having regard to terms and conditions of d form pattas, granted with regard to the tree - growth, the government, reserved only sandal wood trees and with regard to the tree - growth not so reserved, petitioners contend, ownership was. Sought to be vested in them. Expressio uniusest exclusio alterius. In the case of poverty and in the case of landless poor, even if tree growth belongs to the government, it is open to the assigning authorities be they tahsildar or divisional officer or collector as the case may be, to remit the payment of value of the growth altogether (see b s. O. No. 15 (14.) all this can be done only before final orders of assignment were passed but not after that as per the aforesaid para. No. 14 of b. S. O. 15. That was the reason why the revenue department, at the beginning itself, in token of their having recognised the right of the petitioners to the tree - growth in the land assigned, recommended to the forest department for the issuance of transit permits to the petitioners for cutting and removal of the tree - growth. (4) the petitioners, the poor tribals, could not avail themselves of the benefit flowing from interim orders of this court directing the issuance of transit permits on account of each petitioner being required by the forest authorities to furnish security in a sum ot rs. 4. 000. (5) on account of the special privileges secured and protection guaranteed to the tribals in the constitution as referred to heretofore, an amount of rs. 390 millions, in the first five year plan, rs. 470 millions in the second five year plan and rs. 610 millions in the 3rd 5 year plan and more amount in the subsequent plans were provided and set apart for tribal welfare. In that wider constitutional context, the authorities lost perspection by their thinking that the ownership of 8,146 trees did not vest in the poor tribals. (6) the authorities were of the view, without verification and without absolutely any basis whatsoever that the lands assigned were situated in the vicinity. That stand was given up. They shifted their stand. Now they say those lands were situated in the heart of the reserve forest. The present taluk surveyor, yellavaram, has shown this area to be unreserve forest with reference to his record. The petitioners deny the stand of the department and assert that the lands are not situated in the reserve forest area and that even now, no gazette notification in that direction was made available in support of their contention. (7) in justification of their reluctance, practically amounting to refusal to obey the directions of this court, the learned government pleader submits that a review petition was filed accompanied by a petition under section 151, civil procedure code, requesting the court to condone the delay of one year and 43 days in filing the review petition to review the order dated 9th november, 1977, passed in w. A. No. 566 of 1977 the reclamation shall have to be completed by the petitioners within three years from the date of the grant of pattas i. E. , from 26th june, 1976. (8) as per b s. O. No. 15 (3) (7) nothing contained in any of these rules shall be held to debar government from disposing of land otherwise than under these rules at their discretion as heretofore. Land in the vicinity of reserved forests also can be assigned by the collector after consulting the forest officer (b. S. O. No. 15 - 35 (iii). Land reserved under section 26 of the forest act also can be assigned with the sanction of the collector (b s. O. No. 15 (35) (vii). Therefore assignment of lands either in the vicinity of a reserve forest or in the reserve forest itself can be made after following the procedure prescribed. There is no inherent want of jurisdiction involved in the matter of assigning such lands. (9) promissory estoppel. - the petitioners are entitled to invoke the doctrine of promissory estoppel the petitioners were landless poor. They are tribals. They were granted pattas on 28th june, 1976. They completed the enumeration of trees. They laid pathways. Thousand of rupees were expended by them as they contend, for the above purpose. They have invested the amounts by disposing of their properties and by obtaining loans and at present, they have no other source of living. They complain "much injury and damage is caused to us after assignments of lands due to harassment and frustration caused by the authorities. It is submitted that the authorities will not remove the tree growth and allow us to bring the land in cultivation as can be seen by the past experience. " an assurance was given by a public body or one of its officers to the petitioners by assigning lands and granting pattas. That was relied on and acted upon by the petitioners who incurred enormous expenditure in reliance on that. The authorities are precluded from denying the validity of assignments or their binding force. Halbury's law of england 4th edn. Vol. I at page 26. "whenever public bodies and officers, in their dealings with a cirizen, take it upon themselves to assume authority on a matter concerning him, the citizen is entitled to rely on their having the authority that they have asserted if he cannot reasonably be expected to know the limits of that authority; and he should not be required to suffer for his reliance if they lack the recessary authority. " (de smith - judicial review of administrative action - third edition at page 90). If a government department in its dealings with a subject takes it upon itself to assume authority upon a matter with which he is concerned, he is entitled to rely upon its having the authority which it assumes. He does not know and cannot be expected to know the limits of its authority (the department, the crown and other departments are all bound by the promises). (denning j.) the law is that a defect in procedure can be cured and an irregularity can be waived even by a public authority so as to render valid that which would otherwise be invalid. (dennings, m. R.) it is through the application of the doctrine of promissory estoppel that the individual :an be protected from a loss as a result of maladministration by public authorities. The government was bound by an assurance given to a private individual by an officer who in fact had no authority to give such an assurance. (10) the respondent - authorities are precluded from questioning the validity of the assignment and the grant of the pattas on account of the operation of the doctrine of constructive res judicata. (11) part iv - article 46 - the court is "state" within the meaning of article 12 of the constitution and judicial process is state action and as such as per article 46 it shall have to promote with special care the economic interests of the weaker sections of the people and, in particular, of the scheduled tribes and it shall have to protect them from social injustice and all forms of exploitation. (12) the judiciary is bound to apply the directive principles in making its judgment. When two judicial choices are available, the construction in conformity with the social philosophy of part iv should be preferred. It is the duty of the courts to interpret law in such a way as to further the directive principles of state policy, in this case, article 46 of the constitution in part iv which by article 37 is declared as fundamental in the governance of the country. The construction which is likely to further the interests and rights of the tribals is to be preferred to the one that is likely to thwart, hinder or hamper the same. (13) pattas were granted to the petitioners under twenty point economic programme of prime minister. (see the letter dated 7th may, 1977 from the district forest officer to the conservator of forests). As per the first proviso to clause (1) of article 275 of the constitution, for the purpose of promoting the welfare of the scheduled tribes in a state or for raising the level of admit istration of the scheduled areas, provision is made for the payment from out of the consolidated fund of india as grants - in - aid of the revenues of a state, such capital and recurring sums as may be necessary to enable that state to meet the costs of such schemes of development as may be undertaken by the state with the approval of the government of india. Andhra pradesh has a tribal population of 22. 26 lakhs which constitutes 5. 11% of the population of the state. The scheduled area in the state extends over 30,031 sq. Kms which is about 11% of the area of the state. For the welfare of scheduled tribes developmental and protective measures have been initiated by the government and for the various schemes meant for development and amount of rs. 15. 52 crores has been provided in the budget of tribal welfare department for the year 1979 - 80. In additi on, other departments of government have earmarked rs. 13 54 crores for implementation of their programmes in tribal areas under the sub plan. The tribal welfare programmes cover a wide range of activities as the aim is to remove all constraints in the way and help the tribal to join the mainstream of national life. On the economic uplift side emphasis is on '"agriculture" which is the main occupation of the tribal. The andhra pradesh scheduled tribes co - operative finance corporation has been established to enable tribals to draw up on the institutional finance for their economic betterment. Admission of scheduled tribe students in the public schools. - the scheme of admission of bright scheduled tribe and denotified tribe boys in public schools of the state has been in existence from the year 1971 - 72. The entire cost of education including boarding and lodging and all other amenities is met by tribal welfare department. On an average an amount of rs. 5,000 is spent on each boy annually upto the current academic year. At present, 75 students are benefited by this scheme. The tribal welfare department is providing an amount of rs. 123. 46 lakhs for staff subsidy, forest rentals etc. The andhra pradesh scheduled tribes co - op. Finance corporation limited, hvderabad, was established in the month of october, 1976. The primary duty of the corporation is to undertake the tasks of economic upliftment of the member of the scheduled tiibes in the state. Agriculture. - under this scheme rs. 10. 27 lakhs are earmarked. The amount earmarked for 1979 - 80 is meant for implementation of the following schemes. Materials and supplies. Minor works. 1. Reclamation of land. 2. Tractor ploughing. 3. Development of land assigned. Land acquisition (scheduled tribes) : - an amount of rs. 25. 00 lakhs has been provided for acquisition of house sites for scheduled tribes during the year 1979 - 80. (from "tribal welfare activities" tribal welfare department, government of andhra pradesh, hyderabad) the proceeds of the sale of tree growth are intended to be utilized for the reclamation of the land assigned and for bringing the same into cultivation as an integral part of the scheme for the promotion of the welfare of the scheduled tribes. It is only on account of that the correspondence between the revenue and forest departments envisaged the crediting of the sale proceeds to the petitioners as part of their contribution which was reflected in the judgments of jeevan reddi, j. And the division bench. (14) the source of power for the conferral of rights is law, be it constitutional law, legislator's law or judge - made law. The division bench decision confers rights on the petitioners to have the proceeds of the sale of tree - growth credited to their accounts proportionately. Reclamation expenses in the case of poor tribals have to be borne by the authorities as the special position accorded to the tribals by law recognises. That was the reason why the collector wanted these amounts to be credited representing their contribution. The basis for this is not the ownership in the tree growth of the petitioners.

(92) The justification for the relief claimed by the petitioners is the recalcitrant attitude of the authorities.

(93) For the aforesaid reasons, we are satisfied that this is a fit case where the writ of mandamus as sought for shall have to be issued and it is hereby accordingly issued. The petitioners are hereby directed to maintain proper accounts. The writ petition is therefore allowed but, in the circumstances, without costs. Advocate's fee rs. 150.

(94) An oral request is made requesting this court for permission to leave to appeal before supreme court. We are not satisfied that there is involved in this case a substantial question of law of general importance as to need any decision from supreme court. Leave is therefore refused. We see no reason to grant stay as sough for. Writ petition allowed.