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2015 DIGILAW 1047 (KAR)

DEPUTY COMMISSIONER v. ARAVINDA

2015-09-04

B.V.NAGARATHNA, SUBHRO KAMAL MUKHERJEE

body2015
JUDGMENT : The Deputy Commissioner, Chikkamagaluru District and two other officers of the said District have assailed order dated 18/07/2014, passed in Writ Petition Nos.9645 and 12359 of 2013, by the learned Single Judge of this Court. By that order, the learned Single Judge has quashed communications at Annexures “A” and “B”, insofar as they relate to directing the respondents to pay the value of ‘malkis’ (trees), as on the date of permission to fell the trees and allowed the writ petitions in part. 2. The respondents are stated to be the owners of land, measuring 4 acres in Sy.No.97 of Lokanathapura Village, Megunda Hobli, Koppa Taluk, Chikkamagaluru District. They had made an application for permission to fell jungle wood trees. On considering their application, the Tahsildar made a recommendation dated 18/10/2011, to the Deputy Conservator of Forests, to accord permission. However, the Assistant Commissioner, by his communication dated 04/02/2012, sent to the Deputy Commissioner, Chikkamagaluru District, stated that the present value of the ‘malkis’ would have to be paid by them, if permission was to be accorded to them to fell jungle wood trees. That communication led to the Deputy Commissioner, addressing a letter dated 13/06/2012 to the Deputy Conservator of Forests, on similar lines. The aforesaid documents are at Annexures “A” and “B” to the writ petition, which were assailed in the writ petitions. 3. The writ petitions were opposed by the appellants herein, by contending that the respondents herein had not made any payments with regard to the ‘malkis’ as on the date of the grant of the lands to their predecessor in interest and hence, no permission to fell trees could be granted as ‘malkis’ stood vested with the State. It was contended that the entries to the effect that a sum of Rs.3,000/each, was paid on 20/05/1976 and 27/10/1980, under Challan Nos.31 and 16 respectively, were interpolations in the Register maintained by the Tahsildar and that the respondents had to establish by cogent evidence, that in fact, the said payments had been paid. 4. The learned Single Judge did not accept the contention of the appellants herein to the effect that entries or interpolations were made in the Register maintained by the Tahsildar, illegally, unless cogent evidence to that effect was established by the authorities. 4. The learned Single Judge did not accept the contention of the appellants herein to the effect that entries or interpolations were made in the Register maintained by the Tahsildar, illegally, unless cogent evidence to that effect was established by the authorities. In the circumstances, learned Single Judge relying on three decisions of coordinate Benches, quashed Annexures “A” and “B” communications and allowed the writ petitions in part. 5. While assailing the said order, learned Additional Government Advocate for the appellants contended that when the grant was made to the respondents, the right to ‘malkis’ or trees would remain with the State, unless at the time of grants, payments have been made in respect of the said ‘malkis’. He contended that under Rule 11 of the Karnataka Land Grant Rules, 1969 [hereinafter, referred to as “the Rules”], the respondents could not have paid those amounts as the grants were made in the year 1975 and therefore, the interpolations in the Register maintained by the Tahsildar to the effect that the said amounts were paid was established. He also contended that the lands were granted at an upset price of Rs.75/ [Rupees seventy five only] per acre, under the Rules and at that stage, no amount would have been collected in respect of the ‘malkis’. He therefore, submitted that the order of the learned Single Judge is not in accordance with law and that the order would have to be set aside. 6. Per contra, learned counsel for respondents, while supporting the order impugned, drew our attention to three orders of this Court on the basis of which, learned Single Judge granted relief to the respondents. He therefore, contended that there is no merit in this appeal. 7. Before we give our finding on the rival contentions, it would be useful to refer to the following three decisions of learned Single Judges of this Court, in a little detail as they are relevant to the controversy in question: (a) K.M.Basheer & Co. vs. State of Mysore & Others [(1975) 1 KLJ 372], concerned trees which were standing on sagu lands situated in Kodagu District; the petitioners therein were interested in the trees either as owners of the land or as purchasers of the said trees from the owners of the lands. The lands therein were redeemed lands. vs. State of Mysore & Others [(1975) 1 KLJ 372], concerned trees which were standing on sagu lands situated in Kodagu District; the petitioners therein were interested in the trees either as owners of the land or as purchasers of the said trees from the owners of the lands. The lands therein were redeemed lands. The owners were in lawful possession of the lands paying the assessment in respect of the lands to the State Government. The petitioners therein claimed that they were entitled to cut and remove the timber standing on the lands without paying their value or any other amount to the State Government. The said claim was based under Section 75 of the Karnataka Land Revenue Act, 1964 (hereinafter, referred to as ‘1964 Act’). It was held that whenever the holder of the land had paid for the trees standing on sagu lands, the lands were treated as redeemed lands and wherever such payments had not been made, they were treated as unredeemed lands. In view of the fact that the lands therein were redeemed lands, as the owners of the land had actually paid for the trees standing on the lands even before the aforesaid Act had come into force, it was held that the State Government had not made any reservation with regard to any of the trees standing on the lands under Section 75 of 1964 Act. Also, the State Government had not placed any material before this Court to show that any reservation had been made in respect of the right to trees standing on the lands of the petitioners therein at the time of settlement being made by the survey officer, by an express order or by issuance of a notification. Having regard to the language of Section 75(1) of the 1964 Act, it was held that the burden of showing that the State Government had retained any right in the trees standing on the land was on the Government because in the absence of such proof, the occupant should be presumed to be the owner of the trees. It was held that on the material available on record, it was not possible to hold that the Government had retained any right or interest in the trees standing on the land belonging to the petitioners therein, which was the subject matter of the proceeding. It was held that on the material available on record, it was not possible to hold that the Government had retained any right or interest in the trees standing on the land belonging to the petitioners therein, which was the subject matter of the proceeding. Hence, the question of the petitioners therein, paying any amount to the State for the value of the trees standing on the land which was proposed to be cut and removed did not arise. The State was therefore, directed not to insist upon any payment for the value of the trees in question before issuing permission to cut and remove the trees either to the owners of the land or to the persons who had purchased the trees from them. The Divisional Forest Officer was also directed to issue passes for cutting and removing the trees without insisting upon the payment of any amount by way of value of the trees. (b) In N.K.Basheer Ahamed vs. State of Karnataka & another [(1989) 2 KLJ 260], the legality and correctness of the endorsement issued by the Divisional Forest Officer, Chikkamagaluru Division, Chikkamagaluru, dated 03/12/1976 as well as endorsement issued by the State Government dated 19/06/1980, were questioned. A direction was also sought for refund of the amount deposited by the petitioner therein under protest towards seigniorage value. The facts were that one Channabasave Gowda, was granted five acres of land in Sy.No.173, situated at Bogase village, Chikkamagaluru Taluk and District, for the purpose of cultivation of coffee and he was registered as its owner under Section 14 of the Coffee Act and his name was mutated in the Record of Rights. Channabasave Gowda, entered into an agreement with the petitioner in the said writ petition for the sale of trees standing on the land. The petitioner was to cut the trees and he applied for a Mafi Pass i.e., transport permit under the Karnataka Forest Act, 1963. Instead of issuing the said pass, the value of 357 logs of timber, 368 tonnes of firewood and five lorry loads of matchwood, at the existing seigniorage value plus sales tax and forest development tax, was demanded. The petitioner therein had paid the same under protest. He made a representation with regard to the payment of seigniorage value and sought for refund of the same. The petitioner therein had paid the same under protest. He made a representation with regard to the payment of seigniorage value and sought for refund of the same. The State Government did not accede to the request of the petitioner and issued the endorsements impugned in the petition. Aggrieved by the endorsements, the petitioner therein had approached this Court. It was contended that in the saguvali chit issued to Channabasave Gowda, reservation has been made only in respect of sandalwood trees and not in respect of other trees. Therefore, the contention was that he had acquired full rights in respect of the land in question including the trees standing thereon other than the sandalwood trees, and in respect of those trees, he had acquired the right to cut and remove the same. That contention was countered on behalf of the State by referring to Rule 11 of the Rules as well as Section 80 of the Karnataka Forest Act, 1963 besides placing reliance on a decision of this Court in Babajan H. vs. Deputy Conservator of Forests, Bhadravathi [1986 (2) KLJ 423]. This Court considered Sections 91, 93, 75 and 76 of the Act 1964 and Section 80 of the Karnataka Forest Act, 1963 and held that on a conjoint reading of Sections 91 and 75 of the 1964 Act, it was clear that the grantee of the land therein had become an occupant in relation to the trees standing on such land. Therefore, unless the trees had been reserved, the price for such land would include the price of the Government to sell such trees. Also, wherever the owner of the land had paid for the trees standing on the land, it was to be presumed as if the grantee had full rights in relation to the trees standing on the land. Regarding Babajan’s case (supra), it was held that the persons who were in possession of the land in that case were allottees and were not holding the land under any right of their own and therefore, they could not be treated as occupants of the land. Babajan’s case, turned on its own facts and did not have a bearing on the facts on either N.K.Basheer or K.M.Basheer & Co. Babajan’s case, turned on its own facts and did not have a bearing on the facts on either N.K.Basheer or K.M.Basheer & Co. It was held that Babajan’s case, did not have any application while examining the question as to whether the petitioner in that case had derived rights in relation to the trees in question. Accordingly, endorsements were quashed and a direction was issued to refund the seigniorage value collected from the petitioner therein. (c) In M.V.Suryanarayana Rao vs. Deputy Commissioner, Shimoga District, Shimoga [W.P.No.1103 of 2010 dated June 30, 2011], the petitioner therein questioned the direction to deposit the market value of the timber for getting it released. The tree authority had directed to deposit that timber and rose wood trees to be confiscated. After referring to clause (6) of the saguvali chit issued to the petitioner’s father therein, who had purchased the land under upset price on 10/05/1972, it was held that only sandalwood trees standing in the land were reserved to the State Government and that no other tree was reserved to the State Government at the time of sale of the land, to petitioner’s father. After referring to N.K.Basheer Ahamed, learned Single Judge held that unless a particular type of tree was reserved by the State Government, the tree standing on the land sold by the State in favour of the particular person would vest with the purchaser. In that case, it was noted that the petitioner therein had not only purchased the land but also purchased the wood standing over the land by paying requisite amount. Even assuming that the petitioner had not paid the amount for purchasing the trees in question, he was entitled to become an occupant in relation to the trees standing on such land as per the dictum in case of N.K.Basheer Ahmed. Accordingly, the order of confiscation of the timber was quashed. Even assuming that the petitioner had not paid the amount for purchasing the trees in question, he was entitled to become an occupant in relation to the trees standing on such land as per the dictum in case of N.K.Basheer Ahmed. Accordingly, the order of confiscation of the timber was quashed. (d) In State of Mysore vs. M.M.Thammayya [ AIR 1974 SC 1375 ], the Hon’ble Supreme Court has observed that under Section 75(1) of the 1964 Act, the right of the State Government to all trees in any land shall be deemed to have been conceded to the occupant except in regard to the 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. Therefore, when once it is either admitted or established that a person is an occupant of a land, he would become entitled to all the trees standing thereon unless it is shown by the State Government that there has been a reservation in respect of any of the trees by the State Government or by any Survey Officer at the time of the settlement or by a notification issued and published at any time after such settlement. 8. What emerges from the aforesaid dicta is, that unless the trees have been specifically reserved at the time of making the grant, the sale or grant of such land would include the sale or grant of trees. Also, there could be a situation where only a particular kind of tree standing on the land sold or granted in favour of a person would be reserved and not all the trees, which would then, vest with the purchaser. Further, there could also be a situation where an additional price is demanded and paid for the trees on the land at the time of sale, conversely, there could, at times, be a sale or grant of land including the value or price of the trees. 9. Applying the aforesaid dicta to the present case, it is noted that the respondents herein as owners of the land in question had made an application for permission to fell jungle wood trees. 9. Applying the aforesaid dicta to the present case, it is noted that the respondents herein as owners of the land in question had made an application for permission to fell jungle wood trees. They had traced their title to the land in question to Annexure “C”, which is proceedings of the Special Assistant Commissioner Chikkamagaluru, for disposal of Darakhast lands, by which four acres of land in Survey No.97 were granted. Under those proceedings, it has been noted that ‘malki’ value that is, the value of the trees was to be recovered before the grantee was put in possession of the land. That a sum of Rs.3,000/was computed and paid on the date of grant towards the value of ‘malkis’, was the contention of the respondents. This however, is not accepted to by the appellants herein by contending that there is an insertion in the original Register maintained in the office of the Tahsildar, with regard to the aforesaid payments being made by the second respondent and that the payment has not been made under Rule 11 of the Rules. Therefore, it is contended by learned Additional Government Advocate that the respondents had no right to fell the trees on the land in question as the ‘malkis’, had stood vested in the State. 10. However, such a contention cannot be accepted having regard to the contents in Annexure “C” & “D”, which are the proceedings of Assistant Commissioner at the time of granting the land in question, as it is noted that the value of the trees had been paid. Even if it is assumed for a moment, that there was no payment made for the ‘malkis’ in the instant case, the fact that there was no specific reservation made by the State Government at the time of grant made to respondents’ predecessors, it must be held that the land in question along with the trees thereon, was granted to them. Further, under Section 75 of the 1964 Act, the State Government had not reserved any right in the trees standing on the land in question. In that view of the matter, it is held that the respondents herein had the right to cut and remove the jungle wood trees on the land in question. 11. Further, under Section 75 of the 1964 Act, the State Government had not reserved any right in the trees standing on the land in question. In that view of the matter, it is held that the respondents herein had the right to cut and remove the jungle wood trees on the land in question. 11. Hence, the communications at Annexures “A” and “B”, directing the respondents herein to pay the value of the ‘malkis’, as on the date of the permission, have been rightly quashed by the learned Single Judge. 12. There is no merit in the appeal. 13. The appeal is dismissed, without any order as to costs.