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2007 DIGILAW 297 (KAR)

CLASSIC PLANTATIONS v. STATE OF KARNATAKA

2007-04-19

H.V.G.RAMESH

body2007
( 1 ) PETITIONER has prayed for issuance of a writ of certiorari to quash the order dated 3-3-2000 passed by the 2nd respondent at annexure F; to declare that Nandi Trees and other Trees are not reserved with the Government and that the petitioner is the absolute owner thereof and, for a further direction to restrain the respondents from extracting the existing Nandi Trees in the lands of the petitioner and from transporting the same to the government depot for selling them by public auction. ( 2 ) PETITIONER is a partnership firm having its lands in Sy. Nos. 2, 6 and 7 of Ammadi village and Sy. Nos. 105 and 106 of kumbarakoppa Villages and cultivating coffee plantation. During the year 1981, petitioner intended to remove the trees from the land which were in excess and not conducive for the growth of coffee estate. Under the coffee Acreage Assessment Scheme vide notification dated 24-3-1885, in respect of those estates which were granted prior to that date, all trees of specified categories found in the estate were reserved in favour of the Government and those trees could be felled only after payment of value to the Government. However, in respect of grants made subsequent to 1885, except sandal wood trees, no other trees were reserved in favour of the government, rather, they belonged to the grantee of the estates absolutely. According to the petitioner, as per S. 75 of the Karnataka land Revenue Act, unless the trees of certain category have been reserved in favour of the government, all the trees found on the land granted shall belong to the occupant and not to the Government. As per Government notification dated 20-7-1976 under the karnataka Tree Preservation Act, the said Act is not applicable to coffee estates wherein number of coffee plants were not less than 750 per hectare. As such, in respect of such lands, permission is not required to fell the trees. However, when the petitioner has sought for permission from the Forest Department, the forest Department required the petitioner to obtain permission from the Deputy Commissioner/3rd respondent. Pursuant to the same, the 3rd respondent has issued a letter to the assistant Conservator of Forests stating that the estate of the petitioner had been established around the year 1918-1919. However, when the petitioner has sought for permission from the Forest Department, the forest Department required the petitioner to obtain permission from the Deputy Commissioner/3rd respondent. Pursuant to the same, the 3rd respondent has issued a letter to the assistant Conservator of Forests stating that the estate of the petitioner had been established around the year 1918-1919. Further, as per the Kethwar records, the above said survey numbers are the coffee estate of the petitioner which he started cultivating in the year 1918-19. As such, the 3rd respondent was of the opinion that the land could have been granted before 1918-19. Based on the letter. the Forest Department levied the malki of the trees felled and demanded payment of Rs. 49,689/- and the petitioner also remitted the said amount under protest. ( 3 ) ACCORDING to the petitioner, even as per the opinion of the Deputy Commissioner, when it is not clear whether the lands were granted prior to 1885, it was impermissible to claim the malki. In response to the protest by the petitioner, the 3rd respondent called upon the petitioner to produce documents to establish the year in which the aforesaid lands were granted. Further according to the petitioner, as per the opinion of the Deputy Commissioner, the lands were brought under cultivation in 1918-19 as such, it cannot be presumed the lands were granted before 1885 and even according to the Deputy Commissioner, when the petitioner approached the 2nd respondent for permission to fell and remove Nandi and other trees so as to avoid excessive standing as the same would hamper the growth of coffee plantation, by order dated 4-12-1985 permission was granted to fell 140 trees and permission was rejected for the remaining trees on the ground that the said trees were reserved trees and unless the malki was paid no permission could be granted. However, on further representation by the petitioner, he was granted permission by the 2nd respondent on 5-3-1996 - annexure C, to fell 225 trees except Nandi Trees. At that juncture, petitioner filed W. P. 28893/1997 seeking for a mandamus directing the 2nd respondent to fell the trees without insisting on payment by way of malki. In the said writ petition, petitioner had contended that as per S. 75 of the Land Revenue Act, trees belonged to the petitioner. At that juncture, petitioner filed W. P. 28893/1997 seeking for a mandamus directing the 2nd respondent to fell the trees without insisting on payment by way of malki. In the said writ petition, petitioner had contended that as per S. 75 of the Land Revenue Act, trees belonged to the petitioner. The said writ petition came to be disposed of with a direction to the 2nd respondent to ascertain as to whether any exemption was available under the Land Revenue Act as per the Government Circular in cases of coffee plantations wherein the plants grown are not less than 750 per hectare. According to the petitioner, as the respondent authority did not comply with the direction, he filed contempt petition and in order to avoid the same, the 2nd respondent passed an order on 3-3-2000. Thus according to the petitioner, the coffee plants existing were not less than 750 plants per hectare and as per the Government Circular, the Preservation of trees Act is not applicable and felling permission was also not required. Despite the same, the 2nd respondent proceeded to refuse permission to the petitioner on the ground that Nandi Trees on the estate belonged to the Government as the estate had been granted prior to 1885 and that petitioner could fell the same only on payment of malki to the Government. Hence, this petition. ( 4 ) STATEMENT of objections have been filed by the Government stating that the petitioner's coffee plantation falls within the Coffee Acreage assessment Scheme by notification dated 24-3-1985. In that, according to the category of trees such as Teak, Sandal Wood, Rose wood, Poon, Nandi, Honne and Jalari are reserved to the Government and the petitioner has no right over the said trees. The Deputy commissioner, Chikmaglur is the competent authority to give opinion on this aspect and when the petitioner applied for permission to cut and remove the said specified category of trees, the 2nd respondent has obtained opinion from the 3rd respondent/deputy Commissioner who in his letter dated 30-11-1999 has opined that the land comes within the Coffee acreage Assessment Scheme prior to 1885 and they were included in the notification dated 24-3-1885 as such, the respondent authority has rejected the request of the petitioner for felling of the reserved kind of trees. Further, it is stated that the kathedar has not paid the malki value of these trees and therefore, has not acquired ownership over the trees. Thereafter, petitioner has been asked to pay the malki value of Rs. 49,689/- towards the reserved kind of trees. After payment of malki, the felling permission had been granted to fell the reserved kind of trees treating the malki value paid as revenue to the Government. As such, question of refund of malki collected does not arise. Although the petitioner is excluded from the enforcement of the provisions of the Karnataka Preservation of trees Act, but in view of the report of the deputy Commissioner that as per the Coffee acreage Assessment Scheme, the grant of coffee estate was prior to the notification issued in the year 1885 and that the petitioner has no right over the said trees reserved, the request of the petitioner for felling permission in respect of the reserved trees was rejected by the 2nd respondent. It is also stated the very fact that the girth of the trees is about 4. 5 mtrs. goes to show that the estate was granted prior to 1885 and not during 1918-19. ( 5 ) HEARD the counsel for the petitioner and the Addl. Government Advocate. ( 6 ) IT is the submission of the petitioner's counsel that as per the decision of this Court, it is for the Department to prove that these kind of trees was reserved and in the absence of such proof, question of paying malki does not arise and also when all the trees on the land granted belong to the petitioner, the question of payment of malki does not arise. In support of his argument, learned counsel has relied upon the decision in the case of K. M. Basheer and Co. v. State of Mysore and Ors. , 1975 (1) KLJ 372 to the effect that once it is established that a person is the occupant of the land under S. 75 of the Land Revenue Act, he would be entitled to all the trees standing thereto unless it is shown by the State Government that there has been reservation in respect of any of the trees by the State Government and that the burden of showing that the government had any right on the trees standing on the land is on the Government. ( 7 ) PER contra, Government Advocate submitted that the petitioner has neither produced the grant certificate nor the malki paid earlier to get himself exempted from payment of malki further. He has also relied upon the decision of the Apex Court in the case of State of Karnataka and Ors. v. Rober D'silva, Civil appeal 4262/1996 to the effect that when the case involves disputed question of fact, it has to be ascertained by way of fact finding before the Civil Court, the writ petition is not the remedy and the burden would be on the petitioner to establish that the grant was made subsequent to 1885. Accordingly, he contended that in respect of the seven kind of trees reserved, unless the malki is paid either at the time of grant or subsequently thereafter as per the requirement, petitioner is not entitled to claim the trees which are reserved as belonging to him. ( 8 ) IN reply, petitioner's counsel has relied upon the decision of the Apex Court in the case of ABL International Ltd. and Anr. v. Export Credit Guarantee corporation of India Ltd. and Ors. , 2004 Comp Cas V. 118 p. 213 to contend that even in cases of contractual obligation in appropriate cases, writ petition can be said to be maintainable. Merely because some disputed questions of fact arises for consideration, that cannot be a ground to refuse to entertain the writ petition. ( 9 ) IN the instant case, it appears the Deputy commissioner, Chickmagalur has given an opinion to the 2nd respondent referring to the kethwar Register regarding grant of land in favour of the petitioner to be earlier to 1885 as such, the 1885 notification is applicable to the case of the petitioner wherein seven kind of reserved trees cannot belong to the petitioner unless the malki is/was paid. It appears when the petitioner has sought for permission to fell the trees, subject to payment of malki he was permitted to remove the trees though he paid the same under protest. It appears when the petitioner has sought for permission to fell the trees, subject to payment of malki he was permitted to remove the trees though he paid the same under protest. In Basheer and company's case cited supra though it is stated that the burden of proof is on the Government as per S. 75 ( 1) of the Land Reforms Act, when it is seen as per the Deputy Commissioner's report that as per the Kethwar Register maintained, the grant in respect of the petitioner was said to be earlier to 1885, petitioner cannot once again say that the burden is on the part of the Government as, that burden has been discharged it is for the petitioner to establish that the grant was made subsequent to 1885 and that there was no reservation made in respect of certain kind of trees or else he should have shown any material that malki was paid during the relevant point of time. Even when the petitioner was called for by the Deputy Commissioner to produce the grant certificate and other related documents, it appears the petitioner did not produce any document before the Deputy Commissioner during enquiry. ( 10 ) IN the circumstances, when the petitioner did not discharge his burden initially and also thereafter when the Government has specifically, based on the Kethwar Register, stated that the grant was earlier to 1885, petitioner cannot make a mere oral submission to contend that grant is subsequent to 1885. Even it is clear from annexure R1 which refers to the Kethwar Register based on which opinion was formed by the Deputy Commissioner that seven kind of trees has been reserved as per the notification dated 24-3-1885 and that petitioner had not obtained the ownership of the trees by paying malki. In view of the above, petitioner cannot contend that the grant is subsequent to the notification. As such, I do not find any merit in the contention of the petitioner. ( 11 ) ACCORDINGLY, petition fails and is dismissed. No costs. Petition dismissed.