Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 639 (KER)

Gopi v. Tahsildar

2002-09-24

M.RAMACHANDRAN

body2002
Judgment :- 1. Vide L.A.A. No. 1386/93 dated 7.7.1994, by Ext. P6, the petitioner had been granted a patta in respect of 70 Ares (1.72.960 Acre) in the Udumbanchola Taluk. His claim is that he is in possession of the property ever thereafter. 2. At the time of the grant, the mandatory conditions as per the rules, had also been incorporated in the patta and condition No.1 was that the wild trees, specifically referred to in the schedule, fully belong and all trees which were there and might erupt are to be properly preserved by the assignee. 3. The petitioner points out that there were five trees so reserved. The petitioner wanted to cut and remove the trees after remitting the tree value. An application as Ext. P1 had been submitted by him in this regard. Reference was made to one Thumbegom and four Chadachi trees. The Village Officer, Konnathady, by Ext. P3 dated 8.11.2001 reported to the Tahsildar that there was a residential house in the property belonging to the petitioner as XI/320 and in the property there was a Thumbegom tree which was rotten and stunted and it was a danger to the house as also cultivations. He referred to the above as a reserved tree in the patta and also showed presence of three Chadachi trees as reserved. He recommended that the Thumbegom tree was having 280-cros. girth and 25 meters height at the time of conferment of patta and its present girth is 325 cros. and height 25 meters. He recommended that the above tree (alone) may be permitted to be cut and removed. Endorsing the report and recommending cutting and removal of Thumbegom tree, the Tahsildar had made a report to the Revenue Divisional Officer (2nd respondent). However, it appears that the second respondent had thought it fit to make a local inspection. The site inspection, according to him, revealed that the tree was not in any danger to the house and it was a very huge tree with a girth of 325 cros. and not susceptible to winds. However, it appears that the second respondent had thought it fit to make a local inspection. The site inspection, according to him, revealed that the tree was not in any danger to the house and it was a very huge tree with a girth of 325 cros. and not susceptible to winds. Observing that this tree comes under the royal tree category and is very valuable and costing "lakhs of rupees" and since the petitioner was not rich enough to buy the tree at such a huge price and since his motives did not appear to be entirely proper, he recorded an opinion that there was no necessity for giving permission for cutting the tree. This order is under challenge. 4. The petitioner submits that there can be no dispute about the proposition, that as an occupier of patta land, the petitioner was obliged to pay only value of the tree as calculated on the date of assignment. Reference had been made to a judgment in O.P. No. 9545 of 1998 and especially the following observation: "As per R.10(3) of the Kerala Land Assignment Rules, 1964, assignee is liable to pay the value of the trees. It must be the value of the trees standing on the land at the time of assignment at such rate as may be ordered by the Government. The Government have issued G.O.MS.1240/75 dated 22.9.75 under the above provisions. In the G.O. the Government have specifically mentioned that while assigning lands trees value will be realised at the seignorage rate in force at the time of assignment, on the basis of the orders issued by Revenue Department. The argument is of the respondent seems to be that since the petitioners did not pay tree value at the time of assignment, they are liable to pay the value of the trees at the prevailing seignorage rate on the date of cutting of trees. Though R.10(3) of the Kerala Land Assignment Seignorage value of the trees should be at the rate prevalent at the time of assignment there is no rule or order which says that in case the parties fail to remit the tree value at the time of assignment. They are liable to pay seignorage a value at the time of cutting of the trees. They are liable to pay seignorage a value at the time of cutting of the trees. Therefore, the present attempt to realise the amount on the basis of the seignorage value at the time of cutting of the trees cannot be sustained". He also submitted that reference to Thumbegom as a royal tree was incorrect and had referred to a judgment passed in O.P. No. 16133 of 2001. He submits that the Revenue Divisional Officer had erred in considering the issue in the correct perspective and the order is liable to be set aside and appropriate directions are to be issued to the competent officer to finalise the request that had been contained in Ext. P1. 5. A counter affidavit had been filed by the second respondent substantially arraying the reasonings that had been there in the impugned orders passed by him. It is pointed out that the trees were reserved at the time of assignment and had no private rights over the trees in the patta land; they always being the property of general public. He reiterated that Thumbegom and other trees were not dangerously slanting over the petitioner's house or property of the petitioner and his application had therefore been rightly rejected. 6. The question is as to whether it will be permissible for the petitioner to insist, as of right, the cutting and appropriation of the Thumbegom tree, standing in the property that had been assigned to him. It cannot be disputed that trees have been reserved at the time of assignment and the Thumbegom tree is one of them. From a description and reference to its value, it appears to be extremely valuable. If the tree was standing, in a position dangerous to the petitioner's house and property, of course the Revenue Divisional Officer was the most competent person to decide as to whether it has to be removed. The fact finding authority, namely the R.D.O. has in categorical terms made an opinion that the tree is very sound and stubbornly positioned and there was no threat to the petitioner. There should have been an end of the matter, as this Court had no business to make any further probe. 7. The fact finding authority, namely the R.D.O. has in categorical terms made an opinion that the tree is very sound and stubbornly positioned and there was no threat to the petitioner. There should have been an end of the matter, as this Court had no business to make any further probe. 7. But, Shri. Jaju Babu submits that in terms of the patta that had been issued to the petitioner it may be possible for him to put forward a claim for cutting and removing, and in essence utilising the timber by payment of the market price as on the date of assignment. As referred to earlier he relies on the decision in O.P. No. 9545 of 1998, a copy of which is produced as Ext. P2. 8. I had been led through the Land Assignment Act and the Rules by the Government Pleader. But I could not see any provisions which entitles an assignee to get the trees that had been there at the time of the assignment with absolute right and to the exclusion of anybody else. It is only a fortuitous circumstance that he has been assigned a parcel of land, where Government had in possession of wild trees. S.3 provides that the Government or the prescribed authority may either absolutely or subject to such restrictions, limitations and conditions assign Government lands. Rules also have been prescribed by the Government as Kerala Land Assignment Rules, 1964. R.8 deals with the conditions of assignment on registry. R.9(6A) provides that notwithstanding the order of registry, the title of the land shall not pass to the assignee until he remits the land value and tree value payable in respect of the land. In the case at hand, there was no insistence for payment of tree value, as the Government had reserved rights over the trees and therefore it can be taken that subject to the reservation of trees the title had passed over to the petitioner. The provision can be only understood as the Government's right to levy the tree value, if they were inclined to give away the trees as well. 9. The provision can be only understood as the Government's right to levy the tree value, if they were inclined to give away the trees as well. 9. While dealing with the land value and other dues to be paid R.10(3) says that the assignee shall pay the value of the trees specified in Parts A and B of Appendix III to these rules standing on the land (at the time of assignment) at such rates as may by order, be specified by Government and subject to certain conditions. Sub-r. (c) says that if the assignee is not agreeable to pay the tree value as specified in clause (a), in respect of trees specified in Part A of Appendix III, a public auction has to be carried out in respect of the trees. May be it was on the basis of the above rules that the petitioner had urged a claim, with reference to the judgment, but as far as this case is concerned, I am of the definite view that the rules were not applicable, since this rule could have been relevant only when tree value was being collected at the time of actual assignment. The Government had chosen to reserve the trees with them and even as at present there is no intention to dispose of the trees. As such, the petitioner has failed to establish that he has a right to get the tree on the market value on the date of assignment in 1994 or in 2002. 10. The words "at the time of assignment" had been introduced by notification dated 21.1.1970. The presence of rule amply indicated that on any date if the assignee is not agreeable to pay the tree value the Tahsildar can dispose of it on public auction. This can be only read in present tense. Therefore, in so far as the trees were reserved, it is not possible to agree with the contention of the learned counsel for the petitioner that there was right vested in him to get the tree at a price which might have been ruling in 1994. Ext. P2 judgment does not at all come to his help. 11. About the report of the Village Officer, as ratified by the Tahsildar, the less said the better. Thankfully the RDO had saw the game and had appropriately intervened. Ext. P2 judgment does not at all come to his help. 11. About the report of the Village Officer, as ratified by the Tahsildar, the less said the better. Thankfully the RDO had saw the game and had appropriately intervened. Since the basis of the petitioner's claim does not appear to be authentic further examination of Appendix I, II and III does not in fact arises. Schedule to Appendix II refers to 4 items of trees and they are royal trees. But Thumbegom is included as item 2 in Appendix III and it is a reserved tree. As such, the findings in O.P. No. 16133/01 also does not have any relevance. I hold that a reserved tree can be reserved perpetually and the assignee has no option to assume control over it as he wishes. This finding therefore would be sufficient to dispose of the O.P. and the claims of the petitioner were rightly disallowed. 12. It can well be taken that the tree was not causing any threat or danger to the petitioner, and therefore his request contained in Ext. P1 application does not deserve consideration. The Original Petition will stand dismissed.