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2001 DIGILAW 126 (KAR)

P. L. Thammanna Gowda v. State of Karnataka

2001-02-09

H.N.TILHARI

body2001
ORDER Hari Nath Tilhari, J.— Heard Sri K.B. Jagannath holding brief for Sri K.T. Mohan, learned Counsel for the Petitioner. 2. By this petition, the Petitioner has prayed for issuance of following reliefs: a) To quash the demand notice dated 22.3.1995 issued by the second Respondent in No. NOC:Ata: Aranya Sancharidal: 19/92-93 vide Annexure-'J' and the impugned order dated 14.2.1996 and 8.12.1998 passed by the second Respondent in case No. NOC: Ata: Aranya Sancharidala: 19/92-93 vide Annexures-K and L respectively by the issue of writ of certiorari or any other appropriate writ or order or direction. b) To direct the second Respondent to issue transport permit to the Petitioner to transport all the remaining timber and firewood from the land in question by the issue of writ of mandamus or any other appropriate writ or order or direction. c) To direct the second Respondent to pay the value of the timber and fire-wood forfeited and removed by him in order to auction the same by the issue of writ of mandamus or any other appropriate writ, order or direction. d) And to grant any such other incidental relief which this Hon'ble Court may deem fit to grant in the circumstances of the case and allow this writ petition with costs. 3. According to the Petitioner, he is the absolute owner in possession and enjoyment of 5 acres of coffee land out of Sy. No. 25 situated at Hyarambi Village, Chickmagalur Taluk. According to the Petitioner's case, the land in question has been his ancestral property, inherited by him from his ancestors. The Petitioner has been registered to be the owner of the above land as mentioned earlier and according to the Petitioner he has been paying land revenue and other taxes to the government. There are a number of trees planted on the land by the Petitioner and those trees did exist. The Petitioner admits that in order to maintain proportionate shade and to remove over growth and unwanted trees, the Petitioner entered into an agreement with Smt. Maimunna, W/o. D. Mohammed of Chickmagalur who is a Forest contractor to cut and remove such unwanted trees from the land in question during the year 1992 and that their workers have felled some trees. According to the Petitioner the authorities seized those timbers including fire-wood on the ground that the Petitioner had felled the trees standing on the above said coffee land without requisite permission and registered a case viz., Case No. FOC 19 of 1992-93, dated 6.9.1992. According to the Petitioner, the Respondent No. 2 seized in all 168 logs of timber measuring 64.064 cu.mt. and fire wood measuring 2,900 sq.ft. The Petitioner's case is that the Petitioner represented to the second Respondent i.e., Deputy Conservator of Forest to release those timbers and fire wood on the ground that he did not commit any offence and since he was the owner of the land in question, it was not necessary for the Petitioner to have obtained permission to fell the trees standing on the land. But according to the Petitioner by order dated 5.3.1994, his revision was rejected and it was held that Karnataka Preservation of Trees Act, 1976 has been applicable. 4. According to the Petitioner the Petitioner filed a writ petition challenging the order of Respondent No. 2 viz., Writ Petition No. 6865 of 1994 contending among other things that the provisions of Karnataka Preservation of Trees Act, 1976 do not apply to the facts of the case and permission was not required to be taken by the Petitioner to fell the standing trees on the land in question. According to the Petitioner, this writ petition was allowed by this Court by order dated 7.4.1994. The copy of the judgment dated 7.4.1994 has been placed as Annexure-'C' to the writ petition. Thereafter, the matter was sent back to Respondent No. 2 - Deputy Conservator of Forest to consider the case afresh after taking into consideration the certificate dated 21.3.1994, alleged to have been issued by the Liaison Officer of Coffee Board according to which the provisions of Act was not applicable to the land in question and that he was not required to take permission. The Deputy Conservator of Forest after considering the evidence on record and also the order passed by this Hon'ble Court, passed an order on 7.6.1994, releasing the felled timber and firewood to the Petitioner. The Deputy Conservator of Forest after considering the evidence on record and also the order passed by this Hon'ble Court, passed an order on 7.6.1994, releasing the felled timber and firewood to the Petitioner. At later stage somebody gave a letter to the second Respondent-Deputy Conservator of Forest that the certificate did bear the forged signature and therefore the second Respondent directed the Tahsildar, Chickmagalur Taluk to enquire into the said ananimous letter and till then not to issue permit to remove and transport the felled fire wood and timber. Thereafter, the Petitioner made representations to the second Respondent that he is the absolute owner of the land in question and he did not forge the signature of any Revenue Officer to establish his ownership. 5. The Tahsildar conducted detailed enquiry as per the directions given by Respondent No. 2. The Petitioner's case is that no forgery has been done by him but no doubt, it has been found by the Tahsildar that some signatures were forged. The Petitioner's case is that the report of the Tahsildar indicated that the land absolutely belongs to the Petitioner and it was recommended that permission to remove the trees be granted to the Petitioner. According to the Petitioner the second Respondent issued a notice to the Petitioner to pay a sum of Rs. 27,245/- on the basis of the report of Tahsildar vide Annexure-'H' to the writ petition that the Petitioner has no right over the reserved trees and therefore he has to pay a sum of Rs. 27,245/- being the price of said reserved trees and then only his request to remove fire wood and timber will be considered. The said order is dated 22.3.1995 and placed as Annexure-J to the petition. The Petitioner's case is that he made another representation to Respondent No. 2-Deputy Conservator of Forest but Respondent No. 2 without considering the revision, without looking into the records and without the application of mind, passed an order dated 14.2.1996 holding that the Petitioner has no right over the trees in question and forfeited the timber including fire wood. Copy of this order is annexed as Annexure-'K' to the writ petition. Feeling aggrieved by the above order the Petitioner has come up before this Court under Article 226 of the Constitution of India and has prayed for the reliefs that have been mentioned in earlier part of this petition. 6. Copy of this order is annexed as Annexure-'K' to the writ petition. Feeling aggrieved by the above order the Petitioner has come up before this Court under Article 226 of the Constitution of India and has prayed for the reliefs that have been mentioned in earlier part of this petition. 6. On behalf of Respondents, statement of objections supported by an affidavit has been filed. It has been alleged that the revenue records submitted by the Petitioner are concocted and even the signature of the Tahsildar has been forged by the Petitioner. The Tahsildar in his report dated 12.7.1994 which he sent to the Commissioner states that the Petitioner himself has agreed to having done the forgery, but the blame has been put on the contractor that contractor had committed the forgery of signature of the Tahsildar on that certificate. 7. The learned Counsel for the Petitioner vehemently contended that the land belongs to the Petitioner and being the absolute owner of the land in question, he was entitled to fell down the trees and to cut them and he got it done through the contractor. The learned Counsel further contended that so far as forgery question is concerned, the Petitioner has not done that. 8. No doubt, it has been done by the contractor. Apart from forgery case, the question involved mainly is whether the provisions of the Karnataka Preservation of Trees Act did apply to the present case. It is a well settled principle of law that the master is also liable for the acts of the servant and the forged certificate was produced before this Court as well as before the Tahsildar by the Petitioner on his behalf. It is an admitted fact as per the counter affidavit/statement of objections that the land in question according to the Respondent also had been in possession of the Petitioner as its owner but the question is whether it is open to the owner to fell trees standing on his land without obtaining prior permission from the authority under the Act. 9. The Karnataka Preservation of Trees Act, 1976 had been enacted with the object to make better provision for preservation of trees in the State. Trees play very important role in human life. They help us to get rains. They save the land from soil erosion and improve the environment. 9. The Karnataka Preservation of Trees Act, 1976 had been enacted with the object to make better provision for preservation of trees in the State. Trees play very important role in human life. They help us to get rains. They save the land from soil erosion and improve the environment. The preamble of the Act provides: Whereas with the growing pace of urbanisation, industrialisation and increasing population, there has been indiscriminate felling of a large number of trees in the rural and urban areas in the State of Karnataka leading to erratic rainfall, recurring famines and floods, soil erosion and consequent ecological disturbances; Whereas it is expedient to provide for the preservation of trees in the State by regulating the felling of trees and for planting of adequate number of trees to restore ecological balance and for matters connected therewith; The Karnataka State Legislature enacted this Karnataka Preservation of Trees Act. 10. It will be material to quote Sub-sections (1), (2) and (3) of Section 1 of the Karnataka Preservation of Trees Act, 1976 which indicate the extent of the application of the Act: 1. Short title, extent and commencement.-(1) This Act may be called the Karnataka Preservation of Trees Act, 1976. (2) It extends to the whole of the State of Karnataka. (3) This section shall be deemed to have come into force on the seventeenth day of July, 1976 and other provisions shall come into force on such date as the State Government may by notification appoint and different dates may be appointed for different provisions of this Act and for different urban areas or rural areas or parts thereof. Section 8 of the Karnataka Preservation of Trees Act, 1976 is also material. It reads as under: 8. Restriction on felling of Trees.-(1) With effect on and from the appointed day, notwithstanding any custom, usage contract or law for the time being in force, no person shall fell any tree or cause any tree to be felled in any land, whether in his ownership or occupancy or otherwise, except with the previous permission of the Tree Officer. (2) Any person desiring to fell a tree, shall apply in writing to the concerned Tree Officer for permission in that behalf. (2) Any person desiring to fell a tree, shall apply in writing to the concerned Tree Officer for permission in that behalf. The application shall be accompanied by a site plan or survey sketch specifying clearly the site or survey number, the number, kind and girth of tree sought to be cut and the reasons therefore along with the consent of the owner or occupant. (3) On receipt of the application, the Tree Officer may, after inspecting the tree and holding such inquiry as he deems necessary, either grant permission in whole or in part or refuse permission: Provided that permission shall not be refused, if the tree,- i)is dead, diseased or wind-fallen; or ii)has silvieulturally matured; or iii)constitutes a danger to life or property; or iv)constitutes obstruction to traffic; or v)is substantially damaged or destroyed by fire, lightning, rain or other natural causes; or vi)is required in rural areas to be removed either for extension of the cultivation in areas specified in Schedule II or for the bona fide use of the applicant. (4) If the Tree Officer fails to inform the applicant of his decision- (i) in the case of an application in respect of a tree in an urban area and in a rural area of the kind specified in Schedule II, within sixty days; and (ii) in the case of an application in respect of a tree in a rural area of the kind specified in Schedule I, within one year from the date of receipt of the application by him or, if the receipt of the application has been acknowledged by him from the date of such acknowledgement, such permission shall be deemed to have been granted. (5) Where permission to fell a tree is granted, the Tree Officer may grant it subject to the condition that the applicant shall plant another tree or trees of the same or any other suitable species on the same site or other suitable place within thirty days from the date the tree is felled or within such extended time as the Tree Officer may allow. (6) Notwithstanding anything contained in Sub-sections (1) to (5) but subject to such conditions and restrictions as may be prescribed for bona fide domestic use of a family, one or more members of such family may, if they are otherwise entitled to do so, in the aggregate, fell, in a calendar year, such number of trees as would fetch (not more than 2.8 cubic metres of timber and five tonnes of firewood). (7) Nothing in this section shall apply to felling of (casuarina, coconut, Erythrina, Eucalyptus, Glyrecidida, Hopea Wightina, Prosipis, Rubber, Sesbania, Silver Oak and Subabul trees). Section 8(7) of the Act no doubt, reveals that nothing in Section 8 shall apply to felling of Casuarina, Coconut, Erythrina, Eucalyptus, Glyrecidia, Hopea Wightina, Prosipis, Rubber, Sesbania, Silver Oak and Subabul trees. It is not the Petitioner's case that the trees felled by them have been of the nature as indicated in exception clause namely Sub-section (7) of Section 8. A reading of Section 8(1) as quoted above reveals that Section 8, with effect from the appointed day, prohibits and prevents the felling of trees and provides that no person shall fell any tree or cause any tree to be felled in any land whether in his ownership or occupancy or otherwise, except with the previous permission of the Tree Officer. This bar has been created that no person shall fell any tree or cause any tree to be felled even though the land is owned by him. There is no exception made to the effect that a person who is the owner of the land is entitled to cut the tree or fell it down on the ground that he is the owner and have the right to remove the tree. The bar is absolute. The exception is only if the permission is granted by the competent authority to fell the tree as required under Section 8. 11. When I so observe, I find support for my view from an earlier decision of this Court reported in the case of Jose Chake Manakattu v. The Tree Officer and Deputy Conservator of Forests and Ors. AIR 1989 Kar 189 . In paragraph 10, it has been observed as under: As can be seen from Section 8(1) extracted earlier, it imposes restriction on cutting of trees, whether situate on the land owned or occupied by the person concerned. AIR 1989 Kar 189 . In paragraph 10, it has been observed as under: As can be seen from Section 8(1) extracted earlier, it imposes restriction on cutting of trees, whether situate on the land owned or occupied by the person concerned. The law is enacted for the purpose of preservation of trees whether they stand on the Government land or private land. According to the provisions of the Act, no tree can be cut without permission. Therefore, once a tree is cut without permission whether it is situate on a Government land or a private land or on the land belonging to the person who has cut the trees, it makes no difference. Such an act of cutting of trees amounts to an offence. Once such an offence is committed the tree or part thereof so cut in violation of the provisions of the Act is liable to be seized under Section 15 and liable to be confiscated under Section 22 of the Act. When it is a property liable to be seized or confiscated under Section 15 or 22 of the Act, Clause (b) of Section 21(1) of the Act gets attracted. Therefore, notwithstanding the fact that the trees belonged to the person who had cut them, he is liable to pay the value of the trees estimated by the Officer. The payment of value is in the nature of additional amount to be paid for compounding the offence in addition to the compounding fee leviable under Section 21(1)(a) of the Act. A perusal of the above case also reveals that it has been laid down after having referred to Section 15 of the Act that under Section 15, the Tree Officer is authorised to seize not only the vehicles and tools used for the commission of the said offence but also the tree or part thereof which has been severed from the ground or the trunk, as the case may be. 12. In the case of J Adiveppa Babappa Hulasera Vs. 12. In the case of J Adiveppa Babappa Hulasera Vs. Divisional Forest Officer, ILR (1989) KAR 1228 his lordship justice K.A. Swami has been pleased to observe that it is only when a right to cut the tree accrues, the question of making an application under Section 8 of the Trees Act with permission to cut and remove will arise but if a person had no right to the tree, there is no question of his being competent to apply for permission to cut the tree as tree do not belong to him and no right is to vest to such person to cut the tree. When he has right to cut the tree, to remove the bar created by Section 8, he may move the application. It may be appropriate at this juncture to quote the observations contained in paragraph 11 of the judgment which reads as under: 11. The contention of the Petitioners that the application Annexure-F is also an application under Sub-section (4) of Section 8 of the Trees Act and as no decision has been communicated within a period of one year from the date of the application, the permission to cut and remove the trees must be deemed to have been granted by the Tree Officer cannot also be accepted. Unless the authorities of the Forest Department assess the market value with reference to the prevailing market rate and the Petitioners pay the same, no right accrues to the Petitioners to cut and remove the trees standing on the lands granted to them. It is only when such right accrues, the question of making an application under Section 8 of the Trees Act for permission to cut and remove the trees will arise. In the instant case, the Petitioners have not yet acquired such a right. Even if an application is made without a right being accrued to them to cut and remove the trees, such an application will have no value in the eye of law. That being so, the Petitioners are not entitled to take advantage of the deeming provision and contend that permission to cut and remove the trees is deemed to have been granted. 13. That being so, the Petitioners are not entitled to take advantage of the deeming provision and contend that permission to cut and remove the trees is deemed to have been granted. 13. This being the position of law irrespective of the fact that the Petitioner is the owner of the land, he may have a right to cut the tree but exercise of that right has been put to a restriction that it cannot be exercised and the tree cannot be felled or cut by any person standing on his land on the ground that he is the owner of the land. Even if he has a right to cut the tree he cannot exercise that right unless and until he obtains permission in view of bar of restriction and prevention clause contained in Section 8. If a person cuts the tree or fells it down in breach of Section 8, he commits an offence under the Act and if he commits the offence then no doubt, Section 15 will come into operation which authorises the Tree Officer to seize the felled tress and to confiscate it and it can only be released in accordance with law. 14. Thus considered in my opinion, the present petition is devoid of any merits. However, it is well settled principle of law that a person who comes to seek the relief under Article 226 of the Constitution of India must come with clean hands and a person who tries to commit breach directly or through his agent of law of the land, he is not entitled to claim or seek the exercise of power under Article 226 in his favour as writ jurisdiction is not exercisable to perpetuate breach of law. 15. Thus considered the petition is devoid of merits. The petition is hereby dismissed on the above grounds.