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1990 DIGILAW 54 (KAR)

PAUL D SILVA v. STATE OF KARNATAKA

1990-01-24

M.P.CHANDRAKANTARAJ

body1990
CHANDRAKANTHARSJ, J. ( 1 ) THIS petition corning on for orders today is disposed of by the following order after hearing the counsel for the parties. ( 2 ) THE petitioner is stated to bea timber merchant. He entered into an agreement with the 5th respondent d. S. Ananth and acquired certain rights to cut and remove specified timber standing on the land. ( 3 ) THE agreements are producedas annexures a, c and d to the petition. ( 4 ) THEREAFTER, the petitioner approached respondents 2, 3 and 4 fornecessary permission to cut and remove the trees. He was permitted to cut the timber. When he went to remove the cut timber, dispute arose as he had not cut the timber in accordance with the permit issued but he had cut more than what he had been authorised to cut. Therefore the department issued trancit permit only in respect of the trees which the department had authorised to cut. In regard to what the department felt was unauthorised felling trees, it took action under the Provisions of the Karnataka preservation of trees Act, 1976 and the rules framed thereunder. ( 5 ) SRI K. Sridhar, learned highcourt government pleader, appearing for the forest department, respondents 2, 3 and 4 submitted that Section 21 proceedings have been initiated against the petitioner for the unauthorised felling of the trees and penalty also has been imposed. On the other hand, Sri H. B, Datar, learned senior counsel contended that the petitioner has paid whatever penalty was demanded from him and therefore he is entitled to the release even of the un- authorisedly cut trees and therefore he should be issued the pass. ( 6 ) AS against the said contention,learned counsel for respondent-5 who has entered appearance, contended that the petitioner had no right to remove the pnauthorisedly cut trees in terms of Rule 153 of the Karnataka forest rules. ( 7 ) THEREFORE the short questionthat falls for determination in this case is, whether this court may adjudicate upon the dispute that exists in regard to the trees cut as standing timber in proceedings under Article 225 of the Constitution or it should be agitated before a civil court of competent jurisdiction. ( 7 ) THEREFORE the short questionthat falls for determination in this case is, whether this court may adjudicate upon the dispute that exists in regard to the trees cut as standing timber in proceedings under Article 225 of the Constitution or it should be agitated before a civil court of competent jurisdiction. ( 8 ) ON behalf of the department, it is submitted that on account of dispute between the owner of the land and the petitioner who was authorised to cut and remove the trees on receipt of notice from the owner, the transit permit has been withheld. ( 9 ) THIS court under art. 226, as a Rule of prudence, may not decide questions of title. Nor is the forest department empowered to decide title to trees which may not have been acquired under the agreements in question. Therefore, the department cannot refuse transit permit even for unauthorisedly cut trees if there is compliance with Section 21 of the Karnataka preservation of trees Act, 1976. ( 10 ) SECTION 21 provides for two things. In the first instance, the state government may, by order empower a tree officer (a) to compound on payment of a sum not exceeding five thousand rupees any offence under the said act. (b) to release any property seized or liable to confiscation, on payment of the value thereof, as estimated by such officer. ( 11 ) SUB-SECTION (2) of Section 21 provides that on payment of such sum or such value or both, as the case may be, to such officer, the offender, if in custody, shall be released. The property, if any, seized shall be released and no further proceedings shall be taken against such offender or property. ( 12 ) THEREFORE, when admittedly proceeding under Section 21 of the Karnataka preservation of trees act has been initiated and has resulted in compounding of the offence, what remains for the department to do is to release the goods in terms of subsection (2) of sec, 21 of the act. It the value thereof is paid, the offender is entitled to the custody of those trees. Admittedly permission to cut the trees was given to the petitioner and therefore, he will be entitled to remove the trees if he pays the value thereof. It the value thereof is paid, the offender is entitled to the custody of those trees. Admittedly permission to cut the trees was given to the petitioner and therefore, he will be entitled to remove the trees if he pays the value thereof. Any action taken by the forest department will not in any way affect the legal right of the petitioner but it may affect the owner for breach of the terms of agreement by the petitioner which ho may agitate for appropriate relief before a competent civil court. ( 13 ) HOWEVER, isarned counsel for respcndent-5 contends that Rule 153 of the Karnataka forest rules makes provision to prevent the petitioner from removing the trees. ( 14 ) RULE 153 deals with registration of property marks. It provides that application for registration or renewal of property mark including import proper y mark in respect of timber or other for ast produce except sandalwood shall be made to the divisional forest officer furnishing full information regarding the locality where the produce is stocked, kind and quality of produce in respect of which the registration of property mark is sought and as to how it was obtained and such other details as may be required by divisional forest officer, accompanied by 8 fasclmiles of the property mark and a fee of rupees ten. The divisional forest officer may, after such enquiry as he deems necessary, if satisfied about the bona fide of the produce, register such mark in his office and issue a certificate in form 36. He shall also maintain a register in form 37 of all property marks registered. Every such registration shall hold good for the property specified therein and for the period specified or up to the end of 31st March following such registration, whichever is earlier, subject to the proviso that no such fee shall be charged for the registration of property mark of other state governments and such registration shall hold good till they are modified, cancelled or replaced by new marks. ( 15 ) SUB-RULE (2) of Rule 153 empowers the divisional forest officer to refuse or defer the registration of property mark already registered after giving an opportunity of being heard. ( 16 ) SUB-RULE (3) of Rule 153 authorises the divisional forest officer to register more than one property mark to be used by the same person. ( 15 ) SUB-RULE (2) of Rule 153 empowers the divisional forest officer to refuse or defer the registration of property mark already registered after giving an opportunity of being heard. ( 16 ) SUB-RULE (3) of Rule 153 authorises the divisional forest officer to register more than one property mark to be used by the same person. ( 17 ) SUB-RULE (4) of Rule 153 provides that every person, who has registered his or her property mark shall maintain proper and clear accounts of the transaction of the forest produce, showing particulars as to how and wherefrom the produce was obtained. ( 18 ) IN none of theprovisionscontained in Rule 153 is there any reference to the right of the owner to interfere with the grant of registration mark preventing the owner of the property mark transporting the goods the right to which he has acquired under the agreements. ( 19 ) THEREFORE, in this petition, the tis is between the petitioner and the forest department and not with the 5th respondent who is only a formal party to the writ petition. If there has been compliance by the petitioner with the Provisions contained in Section 21 of the Karnataka preservation of trees act and rules framed therein, respondents 2, 3 and 4 are directed to permit the petitioner to remove the forest produce alleged to have been unauthorisedly cut. Similarly, the right of the 5th respondent to claim such damages for breach of contract or for any action taken by the petitioner in excess of the authority vested in him under the agreements in question may be agitated before the civil court and claim such reliefs or damages to which he is entitled to Rule will accordingly issue and be made absolute. Order accordingly. Writ petition allowed. --- *** --- .