E. G. WHITE v. STATE OF KARNATAKA — 1979 DIGILAW 63 (KAR)

( 1 ) IN this petition under Art. 226 of the Constitution the petitioners have sought for issue of a writ of mandamus directing the 3rd respondent to issue transport passes as prayed by them in their application dated 4-10-1974 to cut and transport the silver oak trees grown on their lands, bearing Sy. Nos. 7, 8/1, 8/2 and 15 of Atturnallur village and Sy. Nos. 53 and 54 of Kodagarahalli village, taluk Somwarpet. ( 2 ) AT the outset, Shri Gowrishankar, the learned Counsel appearing for the petitioner, submitted that the petitioners be permitted to withdraw the writ petition in respect of Sy. Nos. 7, 8/1, 8/2, and 15 of Atturnallur Village and the writ petition be considered only in respect of the two lands bearing Sy. Nos. 53 and 54 of Kodagarahalli. Accordingly, the petitioners are permitted to restrict this petition only to lands Sy. Nos 53 and 54 of Kodagarahalli. ( 3 ) THE case of the petitioners is that these two lands are alienated bane tends and as the petitioners are the owners of these lands, the trees glown on these lands belong to the petitioners and the State Government has no right whatsoever in respect of the malki of the trees. The State Government has filed two statements of objections. In the first statement of objections, tile Slate government has admitted that Sy. No, 53 and 54 of Kodagaralli are the Paradhina bane lands". In the 2nd statement of objections, the State Government has taken a stand that the petitioners do not have malki right over the trees grown on these two lands and therefore, they are not entitled for the grant of transport passes to cut and remove the trees from the lands in question. ( 4 ) FOR the purpose of deciding this question, it is necessary to notice the contentions of the petitioners as stated in the writ petition itself. ( 4 ) FOR the purpose of deciding this question, it is necessary to notice the contentions of the petitioners as stated in the writ petition itself. The petitioners have specifically averred in the writ petition that the lands in question are assessed to land revenue and are the private properties of the petitioners 1 to 3 ; that the silver oak trees standing or the lands in question are riot indigenous species and they are of European origin and the ancestors of the petitioners imported these trees from European countries arid planted them in the lands in question ; that these species of trees are riot found as spontaneous growth in any of the Indian forests and that the application dated 4-10-1974 made by them was only for the purpose of cutting and transporting the trees standing on the lands in question as required under Rule 146 of the Karnataka Forest Rules, 1969 (hereinafter referred to as ' the Rules and the 3rd respondent ought to have issued passes for transport and removal of forest produce under 145 (3) of the Rules; that the authorities have misconceived the application made by the petitioners. ( 5 ) IN the first statement of objections dated 6-1-1976, filed on behalf of the respondents, in para 2 of the same it has been admitted that the lands in question i. e, Sy. Nos 53 and 54 of Kodagarahalli have been assessed for land revenue and the same are Paradhina Bane lands (alienated bane lands) and the same are in the possession of the petitioners, the averments df the petitioners that the silver oak trees standing on the lands in question were imported from the European countries and were planted by their ancestors and that the said trees are not of spontaneous growth have not been denied by the respondents. In the statement of objections, the stand taken by the State Government is that the trees do not belong to the petitioners and as such, they cannot be permitted to cut and remove them and the right still vests with the State Government. ( 6 ) THE petitioners have produced a certified extract of the Jamabandi of wet and dry Coffee etc of Kodagarahalli village for the year 1975 in respect of the two lands in question. ( 6 ) THE petitioners have produced a certified extract of the Jamabandi of wet and dry Coffee etc of Kodagarahalli village for the year 1975 in respect of the two lands in question. It has been specifically stated in the said extract of jamabandi that the lands in question are the Paradheena Bane Land (alienated bane lands) from the year 1882-83. The correctness of these entries in the record of rights have not been disputed and on the contrary, as pointed out above, it has been stated in the statement of objections that these lands are alienated bane lands. In view of these undisputed facts, the question that arises for con- sideration is : whether the title to the trees standing on the lands in question can still be said to vest in the State Government inspite of the fact that the lands have become alienated bane ? in Appendix III of the Coorg Land and Revenue Regulation (I of 1899) (hereinafter referred to as ' the Coorg Regulation ') the expressions ' Alienated Bane ' and ' Bane ' have been defined as follows : alienated bane.-Land originally granted as bane, but which has become subject to assessment owing to its separation from the wet land for the service of which it was formerly held. Bane.-Forest land granted for the service of the holding of wet land to which it is allotted, to be held free of revenue by the cultivator for grazing and to supply leaf manure, firewood and timber required for the agricultural and domestic purposes of the cultivator, so long as he continues in possession of the wet land. ( 7 ) RULE 136 of the Coorg Regulations which, as submitted by the Counsel appearing for both the parties, continues to be in force, reads as follows ; conditions for the occupation and cultivation of unprivileged bane.-The assistant Commissioner may permit the separation or alienation of bane on the following terms (i) The conditions noted in Rule 134 (1) and (2) will apply, (ii) (a) If the wet land or any part of it is permanently alienated, the bane or a proportionate part will be transferred with it. (b) On the separation of bane from the wet land to which it was previ- ously attached, whether by alienation of the bane and retention of the wet land or vice versa, the bane tenure will cease, and the land will be assessed at an occupation rate of 4 annas per acre. (c) The minimum area of bane, the separation of which from the wet land is prohibited, is twice the area of the wet land subject to a minimum of 15 acres. (d) The separation or alienation of bane with the permission of the assistant Commissioner is subject to the conditions noted in Rule 97 (2 ). (e) If the wet land is deprived of bane allowed under (c), the portion of bane improperly detached will be liable to penal assessment under Rule 149 (2 ). (iii) The Assistant Commissioner may permit the cultivation of bane on the following terms: (a) Such cases as may appear to the Assistant Commissioner unobjectionable, on payment of assessment under the provisions of Rule 149 and after survey and demarcation. (b) The Assistant Commissioner may allow the concessions noted in rules 126 and 145. (c) Cultivation of not more than 10 acres of bane, granted to genuine cultivating ryots before the 21st May 1886 and still held by them or their representatives by succession is allowed free of assessment, provided that the land to be cultivated is in a compact block. (d) The cultivation of bane with the permission of the Assistant commissioner is subject to the conditions noted in Rule 97 (2 ). (iv) The Assistant Commissioner may, before giving permission for the separation, alienation or cultivation of bane, recover in advance from the applicant the cost of any survey or demarcation that may have to be made on the land. The advance will be adjusted towards the actual cost, when the survey and demarcation is completed. (v) Separation, alienation or cultivation of bane without the permission of the assistant Commissioner will entail the imposition of penal assessment, and the payment of full timber value. (Provided that, in unobjectionable cases, the Assistant Commissioner shall have discretion not to charge penal assessment, and may allow concessions at half the rate but for the full period admissible under R. 126 ). (Provided that, in unobjectionable cases, the Assistant Commissioner shall have discretion not to charge penal assessment, and may allow concessions at half the rate but for the full period admissible under R. 126 ). ( 8 ) THUS, from R. 136 (ii) (b) as quoted above, it is clear that on the separation of ane from the wet land to which it was previously attached, whether by alienation of the bane and retention of the wet land or vice versa the bane tenure will cease and the land will be assessed at an occupation rate of 4 annas per acre. In the instant case, it is also not disputed by the State Government that the lands in question have ceased to be the bane lands and have become alienated bane and the petitioners have become the owners of the same and further the same have been assessed to land revenue and the assessment is being collected from the petitioners. The Jamabandhi extract produced before this court, referred to above, also shows that the lands in question have been assessed to land revenue of Rs. 45-44 p in respect of Sy. No 53 and Rs. 18-18 p. in respect of Sy. No. 54. ( 9 ) SHRI Gourishankar; the learned Counsel appearing for the petitioners, also brought to my notice para 111 of the Report on the Land Revenue Re-settlement of Coorg of the year 1910, in which it has been stated that the term 'alienated bane' or 'alienated hitalu manedala' refers to'bane land'or hitalumanedala' which has been'alienated from the wet land to which it was originally attached ; and such a land is liable to assessment from the date of alienation and the rights of the holder in timber are the same as in the case of bane. In other respects, it is held on sagu tenure. In other respects, it is held on sagu tenure. ( 10 ) FROM what has been stated at para 111 of the report on the Land Revenue re-settlement of Coorg of the year 1910, it is clear that the title to such of the trees that stood on the lands in question on the date of the said lands ceasing to be 'bane lands' and becoming 'alienated bane' continues to vest in the State government, even though the ancestors of the petitioners became owners of the lands in question from the date the lands in question ceased to be 'bane lands' and became 'alienated bane' in the year 1882-83. This is also the position that emerges out of the provisions contained in R. 128 of the Karnataka Forest Rules, 1969. The said Rule reads as follows :"definition-In this chapter, unless the context otherwise requires, "government trees" include all trees and their aftergrowth, on lands belonging to or in the occupation of private persons the right of Government to which has been reserved under the provisions of the Karnataka Land Re- venue Act, 1964 or Rules framed thereunder or any other Act or Rules in force as applying to any area within the State of Karnataka. Exemption-When all such trees in a survey number or holding are cut and removed, trees which may afterwords grow in such survey number or holding either from the stumps or roots or trees so cut and removed or otherwise shall not he Government trees. "a reading of the aforesaid provision and especially the exemption contained therein, makes it clear that all the trees standing on the lands in question are not Government trees. The exemption clause also makes it clear that when trees pertaining to the Government in a Sy. No. or holding are cut and removed, the trees which may afterwards grow in such survey number or holding either from the stumps or roots of the trees so cut and removed or otherwise shall not be government trees. ( 11 ) THE contention of the learned Counsel for the petitioner is that in respect of all those trees standing on the lands in question on the date when the lands in question ceased to be 'bane land' and became 'alienated bane lands', the government continued to have its title to only such trees. ( 11 ) THE contention of the learned Counsel for the petitioner is that in respect of all those trees standing on the lands in question on the date when the lands in question ceased to be 'bane land' and became 'alienated bane lands', the government continued to have its title to only such trees. But, in respect of the trees which have been grown afterwards subsequent to the date of the lands in question becoming 'paradheena bane lands' in the year 1882-83, either from the stumps or roots of the trees so cut and removed or otherwise grown are not government trees. Therefore, it was submitted that the 3rd respondent ought to have enquired into the application filed by the petitioners and ought to have found as to whether the trees standing on the lands in question on the date of tiling of the application could be said to be the trees which were existing on the lands in question on the date when the said lands became 'paradheena bane lands' in the year 1882-83. ( 12 ) IN view of the provisions contained in Rule 128 of the Karnataka Forest rules, and especially with reference to the exemption clause contained therein, the contention put forth by the learned counsel for the petitioner in this regard, merits acceptance. Accordingly. I hold that the Government cannot claim title to the trees that have been grown on the lands in questiou after the lands became alienated bane and the Malki of such trees including the trees grown from the stumps or roots of the trees cut and removed vests in the petitioners and they will be entitled to cut and remove the same without paying the value of the timber on obtaining the transport passes in accordance with the provisions contained in the Karnataka Forest Act. The statement of objections filed by the respondents does not throw any light on this aspect of the case and the statement of objections mainly relates to other lands which are not in question in this writ petition. The statement of objections filed by the respondents does not throw any light on this aspect of the case and the statement of objections mainly relates to other lands which are not in question in this writ petition. Thus, it is clear that the title of the Government to the trees standing on the lands in question and so also the right of the petitioners to cut and remove the trees standing on the lands in question; without payment of any amount towards the value of the trees depend upon the determination to be made as to whether on the date when the lands in question became 'alienated bane lands' in the year 1882-83, the trees standing on the lands in question as on the date of the application i. e. , 4-10-1974, were in existence. It is the case of the petitioners that the trees standing on the lands in question as stated earlier, came to be planted by the ancestors of the petitioners after the lands in questio became ' alienated bane '. Without making an enquiry and without determining the aforesaid question, the application made by the petitioners as per Exhibit-A, could not have been rejected by the 3rd respondent. Consequently, the endorsement exhibit 'd' issued by the 3rd respondent stating that there is no provision in the Karnataka Forest Act, 1963 and Rules framed thereunder, for the redemption of the trees grown on the ' bane lands ' of Coorg District and the application of the petitioners cannot be considered, cannot at all be sustained and the same is liable to be quashed. Consequently, the endorsement issued by the 3rd respondent, produced as Exhibit-D is hereby quashed and the 3rd respondent is hereby directed to enquire into the application dated 4-10 1974, produced as Exhibit A, made by the petitioners and to determine as to whether the trees grown subsequent to the date of the lands in question becoming ' alienated bane ' in the year 1882-83 or were in existence on the aforesaid date when the lands in question became alienated bane. If, as a result of an enquiry, the 3rd respondent were to come to the conclusion that the trees standing on the lands in question have been grown either from the stumps or roots of the trees so cut and removed or otherwise grown subsequent to the date of the said lands becoming ' alienated bane ' in the year 1882-83, the petitioners will be entitled for issue of the necessary permits and the 3rd respondent shall issue such permits to cut and remove the trees standing on the lands in question subject to the compliance with the provisions' of the Rarnataka trees Preservation Act, without insisting for the payment of the value of the timber. No order as to costs. --- *** --- .