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1989 DIGILAW 48 (KAR)

N. K. BASHEER AHAMED v. STATE OF KARNATAKA

1989-02-09

S.RAJENDRA BABU

body1989
RAJENDRA BABU, J. ( 1 ) IN this writ petition filed under Article 226 of the Constitution of India the petitioner has challenged the legality and correctness of the endorsement issued by the second respondent (Divisional Forest officer, Chikmagalur Division, Chikmagalur) dated 3-12-1976, as per Annexure-C, and the endorsement issued by the 1st respondent (State of Karnataka) dated 19-6-1980, as per Annexure-G. In addition the petitioner has also prayed fora writ in the nature of mandamus directing the respondents to refund the amount deposited by him under protest towards seigniorage value pursuant to Annexure-C. ( 2 ) A few facts giving rise to this writ petition may be noticed in order to appreciate the contentions of the parties. One Channabasavegowda was granted land in an extent of 5 acres in survey number 173 situate in Bogase village, khandya Hobli, Chikmagalur Taluk. The said Channabasavegowda was granted the land for the purpose of coffee cultivation. Thereafter, the said Channabasavegowda registered himself as an owner u/s 14 of the Coffee Act, got the Record of Rights mutated in his name whereby the land granted to him was given a new survey number. With a view to clearing the land in order to make it fit for coffee cultivation the said Channabasavegowda entered into an agreement with the petitioner herein for sale of the trees standing on the land for a consideration of Rs 16,000/ -. The petitioner in accordance with the agreement, cut the trees and applied for Mafi pass, that is, transport permit, under the provisions of the Karnataka Forest Act. On the application of the petitioner, instead of issuing a mafi pass, the second respondent herein issued an endorsement as per Annexure-C, by which he demanded payment of the value of 357 logs of timber, 368 tonnes of firewood and five lorry loads of matchwood at the existing seigniorage value plus sales tax and forest development tax, so as to enable him to issue the mafi pass. The petitioner paid the same under protest. The petitioner also made a representation to the first respondent-State of Karnataka in regard to the payment of seigniorage value recovered from him and requested it to refund the said amount. But the Government refused to accede to the request of the petitioner te refund the said amount by an endorsement dated 19-6-1980, Annexure-G. Aggrieved by these endorsements the petitioner has approached this Court. But the Government refused to accede to the request of the petitioner te refund the said amount by an endorsement dated 19-6-1980, Annexure-G. Aggrieved by these endorsements the petitioner has approached this Court. ( 3 ) THE petitioner's case is that the said Channabasavegowda, from whom he aquired the rights in relation to the trees, was granted the land in question under the previsions of the Karnataka Land revenue Act, 1964 (hereinafter referred to as the Act ). Section 91 of the Act provides that while granting the land the deputy Commissioner may annex such conditions to the grant as he may deem fit before permission to occupy such land is given under Section 93 of the Act. The price, if any, for such land shall include the price of the Government's right to all trees not specially reserved under the provisions of Section 75 of the Act, and shall be recoverable as an arrear of land revenue. It is submitted that in the saguvali chit issued to the said Channabasave gowda, reservation has been made only in respect of sandalwood trees and not in respect of other trees. Therefore, the submission is that the said Channabasave gowda had acquired full rights in respect of the land in question including the trees standing thereon, other than sandalwood trees. It was further submitted that it was permissible for the petitioner to acquire the rights in respect of those trees and in this regard the learned counsel for the petitioner placed reliance on a decision of this court in K. M Basheer and Co. v State of Karnataka and others (1975 (1) Kar L. J. , 372 and submitted that the price in respect of the trees having also been collected as provided u/s. 91 of the Act it was not open to the Government to collect seigniorage value again. ( 4 ) THE learned High Court Govt. v State of Karnataka and others (1975 (1) Kar L. J. , 372 and submitted that the price in respect of the trees having also been collected as provided u/s. 91 of the Act it was not open to the Government to collect seigniorage value again. ( 4 ) THE learned High Court Govt. Pleader appearing for the respondents, however, submitted that the land had been granted to the said Channabasave gowda under darkhast subject to the condition of non-alienation of the same for a period of 15 years; that neither the petitioner nor Channabasave gowda could claim any right as owner of the land; that the petitioner having derived a right from the grantee of the land and that grant being subject to several conditions including the one relating to non-alienation, unless the petitioner pays the seigniorage value, he cannot clear the trees standing on the land. To buttress his above contentions, the learned High Court Govt. Pleader cited Section 80 of the Karnataka forest Act, 1963 and Rule 11 of the Karnataka Land Grant Rules, 1969, besides relying on a decision of this Court in babajan H. v Deputy Conservator of forests, Bhadravathi and another (1986 (2) kar. L. J. 423 ). Learned counsel for the state also submitted that it is necessary to examine the original grant and as the same is not available with him in the file he may be given time to produce the same. But considering the facts that this petition had been filed in the year 1983 snd the statement of objections had been filed as early an on 3-3-1984 which makes no mention of the grant and the conditions thereon, I think it appropriate to reject the request for adjournment. ( 5 ) SECTION 91 of the Act reads thus t"unoccupied land may be granted on conditions.-Subject to such rules as may be made by the State Government in this behalf, the Deputy Commissioner may require the payment of a price for unalienated land or sell the same by auction and annex such conditions to the grant as he may deem fit before permission to occupy such land is given under section 93. The price if any, for such land shall include the price of the government's right to all trees not specially reserved under the provisions of section 75, and shall be recoverable as an arrear of land revenue. The price if any, for such land shall include the price of the government's right to all trees not specially reserved under the provisions of section 75, and shall be recoverable as an arrear of land revenue. "the entire chapter with which Section 91 commences relates to rellnquishment of unalienated land belonging to the Government. The Government can grant land or sell the same by auction with such conditions as it may deem fit before permission to occupy such land is given u/s. 93 of the act. It makes clear that price, if any, for such land shall include the price of the government's right to all trees not specially reserved under the provisions of Section 75 of the Act, and shall be recoverable as an arrear of land revenue. Section 75 (1) of the Act provides that in any village or portions of a village if the original survey settlement has been completed before the commencement of the Act, the right of the State Government to all trees in any land; except trees reserved by the state Government or by any survey Officer, whether by express order made at or about the time of such settlement or by notification made and published at or any time after such settlement, shall be deemed to have conceded to the occupant. Similar provision is made in respect of villages or portions of villages where original survey settlement was to complete after the passing of the Act. Sub-section (3) of Sectiotion 75 states that when permission to occupy land has been granted, the said permission shall be deemed to include the concession of the right of the State Government to ad trees growing on that land which may not have been, or which shall not thereafter be expressly reserved at the time of granting such permission. A brief reference to section 76 is also relevant. It states that the right to all trees specially reserved under the provisions of Section 75 and id all trees, brush-wood, jungle or other natural product, wherever growing, except in so far as the same may be the property of any person or of aggregate of persons capable of holding property, vest in the state Government; end such trees, brushwood, jungle or other natural product shall be preserved or disposed of in such man ner as the State Government may from time to time direct. The scheme therefore is wherever the Government wants to reserve its right in respect of any trees the same will have to be provided as under section 75 or 76 of the Act. Section 80 of the Karnataka Forest Act provides that if a question arises as to whether arty forest produce is the property of the State government such produce shall be presumed to be the property of the State Government until the contrary is proved. This section is only rule of evidence and does not provide for any rights in relation to the trees grown in any forest. Reading sections 91 end 75 of the Act together it is clear that a grantee of a land becomes an occupant in relation to the trees standing on such land. Therefore, unless the tre. es have been specially reserved the price for such land will include price of the government to sell such trees. In Basheer and Co. (supra) this Court took the view that where the grantees of the land are in lawful possession paying assessment to the state Government they should be held to be occupants under the Act. The petitions in that case had been filed by a forest contractor as in the present case. Therefore, in order to make a distinction between a contractor and the person to whom the land had been granted this Court referred to the grantees as the owners of the land. Otherwise there is absolutely no difference between the facts of this case and the facts available in the said decision, namely, Basheer and Co. v State of Karnataka. Therefore, the inference is irresistable that whenever the holder of a land has paid for the trees standing on the land, it shall be presumed as if the grantee had full rights in relation to the trees standing on the land. However, learned State counsel submitted that this decision has been distinguished in a later decision of this Court in BABAJAN's case (supra ). In that case the persons who were in possession of the land were allottees and were not holding the land under any right of their own and therefore this Court held in that case that those persons were not occupants of the land. That decision turns on its own facts. The land in question had been granted to harijens who had alienated the same. That decision turns on its own facts. The land in question had been granted to harijens who had alienated the same. The petitioner In that case had acquired rights from the alienee of those lands When the aliansti. on itself had been hold to be contrary to the provisions of the Kanataka scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) act, the question of transferring rights in relation to trees did not arise at all and in that context this Court examined the matter and drew certain inferences and made certain observations. The ratio of that decision does not have any bearing on the facts of the present case. The position in the case in hand is altogether different. Although there is a clause prohibiting the said Chennabasave Gowda, the grantee, from whom the petitioner acquired the rights in relation to the trees only, not to alienate the land for a period pf 15 years from the date of grant or from the date of issuance of the saguvali chit, it is. obvious that the grantee when he entered into an agreement to sell the trees, was not agreeing to alienate the land at all. He was agreeing to sell the trees only tp clear the land to make it fit for coffee cultivation. Therefore, the decision in BABAJAN's case does not have a role to play while examining the question as to whether the petitioner had derived rights in relation to the trees in question. ( 6 ) TO sum up, the position is this : the land had been granted to Chennabasave gowda. He acquired his rights in relation to the trees in view of Section 91 of the Act inasmuch as no trees other than sandalwood troes had been reserved as provided u/s. 75 of the Act. Therefore the petitioner could also acquire rights from the said Channabasave gowda in relation to the trees as had been done in the case of BASHEER and Co. In the circumstances, I quash the endorsements issued by the respondents at Annexures C and G and direct the refund of seigniorage value collected pursuant to Annexure-C from the petitioner, within a period of three months from today. Writ Petition allowed and rule made absolute. Petition allowed. --- *** --- .