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2001 DIGILAW 132 (KAR)

K. Abdulla v. Deputy Commissioner

2001-02-12

H.N.TILHARI

body2001
ORDER Hari Nath Tilhari, J.— By this petition, the Petitioner has sought for the following reliefs: i) Quash the order dated 14.8.1998 bearing No. FOR:130:96-97 (produced as Annexure-A) issued by the first Respondent and hold that the Petitioners are the absolute owners of the trees except sandal wood situated in survey numbers fully described in the schedule to this petition. ii) Consequently permit the Petitioners to cut and remove the trees situated in the schedule property without insisting payment of any amount towards the value of the trees and iii) Pass such other and further orders as deem fit under the circumstances of the case. 2. The Petitioner's case in a nutshell is that the lands had been granted by the State Government to the Petitioner during the year 1928-29. The Petitioner's claim is that he is in possession of the land and is using the same for growing coffee crops. According to the Petitioner's case, trees standing on the coffee land were hindering the growth of the coffee crop by giving excessive shade to the coffee plants. As such, the Petitioner made an application under Sections 74 and 75 of the Karnataka Land Revenue Act, 1964 seeking permission to cut and remove the trees. The Assistant Commissioner and the Tahsildar furnished the report to the Deputy Commissioner stating that the Petitioner is the owner of the land in question. But the Deputy Commissioner opined that the reserve kind of trees belongs to the State Government. The Petitioner's case is that the permission should have been granted to the Petitioner to cut the trees. In the petition no doubt, reference has been made to Sections 74 and 75 of the Karnataka Land Revenue Act. 3. The learned Counsel for the Petitioner contended that in view of law laid down by this Court in Writ Petition No. 36912 of 1997 decided on 9.6.1998 and the judgment of this Court in Writ Petition No. 43003 of 1995, it has been laid down that the burden is on the State to show that reservation of right of trees has been there and it is for the government to prove such reservation that has been made. The Petitioner's Counsel further contended that the State Government has not discharged that burden to show that the trees have been reserved in favour of the government. 4. The Petitioner's Counsel further contended that the State Government has not discharged that burden to show that the trees have been reserved in favour of the government. 4. The learned Government Counsel contended that it has been laid down in the case of J Adiveppa Babappa Hulasera Vs. Divisional Forest Officer, ILR (1989) KAR 1228 that there is no right to seek permission to cut the trees unless the applicant shows that he is the owner of the trees. The learned Government Counsel further contended that here in this case, the Petitioner ought to have been proved that the burden is on him to prove that the trees belong to him. 5. I have applied my mind to the contentions raised by the learned Counsel for the parties. It will be appropriate at this juncture to refer to the following sections of the Karnataka Land Revenue Act, 1964 which deals with the question of ownership of right in the trees. Sections 74, 75 and 76 of the Karnataka Land Revenue Act, 1964 reads as under: 74. Right to trees in village to which survey settlement has not been introduced.-(1) In any village or portions of a village to which survey settlement has not been introduced under this Act or under any of the Act repealed by this Act, the right to all trees, except such as are reserved by the Government under any law for the time being in force, shall be deemed to vest in the occupant, if any, of the land upon which they may be standing except when such trees are the property of the State Government. 75. Right to trees in villages, to which survey settlement has been introduced.- (1) In any village or portions of a village if the original survey settlement has been completed before the commencement of this 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. (2) In any village or portion of village, if the original survey settlement shall be completed after the passing of this Act, whether the work of such settlement was undertaken before or after the passing of this Act, the right of the State Government to all trees in any land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the State Government at or about the time of such settlement or generally by notification made and published at any time previous to the completion of the survey settlement of such village or portion of a village. (3) When permission to occupy land has been or shall hereafter be granted after the completion of the survey settlement of a village or portion of a village, in which such land is situated, the said permission shall be deemed to include the concession of the right of the State Government to all trees growing on that land which may not have been, or which shall not hereafter be expressly reserved at the time of granting such permission or which may not have been reserved under any of the foregoing provisions of this section, at or about the time of the original survey settlement of the said village or portion of a village. 76. Trees and forests vesting in the Government.-The right to all trees specially reserved under the provisions of Section 75 and to all trees, brushwood, 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; and such trees, brush-wood, jungle or other natural product shall be preserved or disposed of in such manner as the State Government may from time to time direct. It will also be appropriate to quote Section 91 of the Karnataka Land Revenue Act, 1964, which reads as under: 91. 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. 6. In the present case, it appears that the lands have been granted by the State Government in 1928-29 i.e., before the commencement of this Act. A reading of the above sections clearly reveal that the rights in trees as provided under Section 74, shall ordinarily be deemed to have been vested with the occupant to whom the land has been granted and in cases where the settlement has been completed after the coming into force of the Act. Sub-section (3) of Section 75 provides that the said permission shall be deemed to include concession of the right of the State Government to all trees grown on that land. Section 76 which is commensurate with Sections 74 and 75 further provides that the right to all trees specially reserved under Section 75 and to all trees, brush-wood, jungle or other natural product, wherever growing, except in so far as may be the property of any present or of aggregate of persons holding property, vest in the State Government. Exception is made with reference to trees which grow on the properties belonging to individuals. The right in the trees may vest in the Government. 7. Therefore, a reading of these provisions along with Section 91 provides for a deeming clause that as regards the trees grown on the land granted to a person prior to the settlement and prior to this Act shall be deemed that trees grown on the land of the occupant go with the land and vest in the occupant unless specifically reserved by the Government with itself. This deeming clause by itself provides that rights in trees will go to the owner and occupant of the land to whom the land has been granted unless and until the State proves that the rights with respect to those trees have been reserved in addition to sandal wood trees, the deeming clause will operate. No doubt, reference has been made to the decision of this Court in the case of Adiveppa Babappa Hulsera v. Divisional Forest Officer ILR 1989 (2) Kar 1228. In that case, the decision was given under Rule 11 of 1969 rules. No doubt, reference has been made to the decision of this Court in the case of Adiveppa Babappa Hulsera v. Divisional Forest Officer ILR 1989 (2) Kar 1228. In that case, the decision was given under Rule 11 of 1969 rules. 1969 Rules may provide differently and indicate the position as after coming into force of the Act where the grants have been made under the Karnataka Land Revenue Act, 1964. The deeming clause has been made applicable with reference to cases of settlement before coming into force of the Act. The case of Adiveppa Babappa Hulasera v. Divisional Forest Officer, in my opinion is not applicable to the facts of the present case. 8. In this view of the matter, in my opinion, under the deeming clause the Petitioner may be considered to be the owner or may be deemed to be having the right of concession of the government unless and until the State proves and establishes that the right with respect to those trees had been reserved and burden is on the State. The application for permission to cut the trees has to be moved under the Karnataka Preservation of Trees Act, 1976 as held by this Court as well and as per under Section 8 of the Karnataka Preservation of Trees Act, 1976 (Karnataka Act 76 of 1976). It has been provided under Section 8(1) as follows: 8. Restriction of 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. 9. In view of the above Section 8(1) of Karnataka Act No. 76 of 1976 no person is entitled to cut, fell or allow the tree to be fell down irrespective of the fact that he is the owner of the trees and land on which the trees stand, unless and until he obtains the permission of the Tree Officer as defined under the Act No. 76 of 1976. 10. Thus, the order dated 14.8.1999 is hereby quashed and the Writ Petition is allowed. 10. Thus, the order dated 14.8.1999 is hereby quashed and the Writ Petition is allowed. The proper course for the Petitioner is to move application under Section 8 of the Karnataka Preservation of Trees Act, 1976 to the Tree Officer for permission to fell or cut the trees. If any application is made before the proper authority under Section 8, the authority should consider it in accordance with principles of law laid down. Costs made easy.