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2002 DIGILAW 749 (KER)

Gopi v. The Tahsildar

2002-11-16

CYRIAC JOSEPH, JAWAHAR LAL GUPTA

body2002
Judgment :- Jawahar Lal Gupta, C.J. The appellant (petitioner in the original petition) was assigned a piece of land measuring 1 acre and 72 cents. On October 11, 2001 the petitioner submitted an application to the Revenue Divisional Officer for permission to cut and remove a tree after payment of the requisite price. Since this application was not decided the petitioner filed O.P.No.32404 of 2001. This petition was disposed of with a direction that the competent authority shall decide the matter within six weeks. In pursuance to the direction given by the court the matter was examined by the authority, viz. the second respondent. Vide order dated January 10,2002 the petitioner’s prayer was declined. 2. The petitioner challenged the order dated January 10,2002 passed by the second respondent by filing a petition under Article 226 of the Constitution. This petition was dismissed by the learned Single Judge vide judgment dated October 1, 2002. Hence this appeal. 3. Mr.Babu, learned counsel for the appellant contends that in view of the provisions of rule 10(3) of the Kerala Land Assignment Rules, 1964 the appellant has a right to pay the value of the tree and to deal with it in the manner he considers it appropriate. The claim has been controverted by Mr.Rahim, the senior Government Pleader. 4. The short question that arises for consideration is – Does Rule 10(3) confer a right on the appellant to pay the value of the tree and to cut it thereafter? 5. Rule 10(3) provides as under: 10. Land value and other dues to be paid:- (3) The assignee shall also be liable to pay the value of the trees, plants and (vines) if any, 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 the following conditions: (a) No value shall be charge in respect of trees the girth of which is 90 c.m. or less at breast height. (b) If the assignee was already in occupation of the land and he or his predecessor in occupation has planted trees etc., thereon, no tree value shall be charged in respect of such of those trees etc. planted by him or his predecessor in occupation as are specified in Part B of Appendix III to these rules. (b) If the assignee was already in occupation of the land and he or his predecessor in occupation has planted trees etc., thereon, no tree value shall be charged in respect of such of those trees etc. planted by him or his predecessor in occupation as are specified in Part B of Appendix III to these rules. (c) 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, the Tahsildar shall dispose of, in public auction, the trees growth which is not allowed free to the assignee under that clause.” A perusal of the above provision shows that the rule makes it incumbent on the assignee to pay the value of the tree. However, it does not place any obligation on the State Government to sell it to the assignee. 6. Mr.Babu contends that the language of the rule gives a right to the assignee. Is it so? 7. Admittedly the land is assigned by execution of a deed of assignment. In common parlance it is described as ‘patta’. Form of this patta has been given in Appendix II of the Rules. The assignment is subject to certain conditions. The first condition is in the following terms: “1. The full right over all the trees within the grant and specified in the schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it.” The above stipulation in the deed of assignment clearly shows that the trees specified in the schedule vest in the State Government. The assignee has no right therein. In fact he is under a duty to take care of the trees which are on the land at the time of assignment or even those which may come into existence subsequently. Still further it is the admitted position that at the time of execution of the deed of assignment four trees were specifically mentioned in the schedule to the appendix. One of the trees was the one in question in the present case. This being the factual position it is clear that by the first condition in the deed of assignment the appellant was precluded from cutting the tree. One of the trees was the one in question in the present case. This being the factual position it is clear that by the first condition in the deed of assignment the appellant was precluded from cutting the tree. In fact he was under a duty to preserve it. It is not disputed that under the deed of assignment the conditions were binding on the assignee. In fact there is a categoric declaration that he would be bound by the conditions. Thus, on a combined reading of Rule 10(3) and the condition in the ‘patta’, it is clear that it is only when the government decides to sell that the assignee has to pay the price. Otherwise, he is bound by the terms of assignment. 8. Mr.Babu contends that the tree is 25 metres in height. It poses danger to the appellant’s house. 9. In the present case this aspect of the matter has been investigated. The site had been inspected. A categoric finding was recorded that the tree was not likely to fall. It has admittedly a girth of 325 Cms. It is obviously a big tree with a broad base. Thus in the circumstances of the case it cannot be said that the tree poses any serious danger to the appellant’s property or person. However, if at any subsequent stage there is a real apprehension, the appellant shall be entitled to make a proper application for consideration of the matter. 10. No other point has been raised. In view of the above, we find no reason to interfere with the view taken by the learned Single Judge. Resultantly, the appeal is dismissed. No costs.