Karnataka High Court
N.P. Ponnappa vs State Of Karnataka And Others on 11 August, 2000
Equivalent citations: AIR2000KANT384, ILR2000KAR5046, 2000(6)KARLJ84, AIR 2000 KARNATAKA 384, (2000) ILR (KANT) 5046 (2000) 6 KANT LJ 84, (2000) 6 KANT LJ 84
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER
1. Since common questions of fact and law are involved in all these writ petitions, they are clubbed together, heard and disposed off by this common order.
2. Petitioner in Writ Petition No. 26284 of 1994 claims that he is the absolute owner and in possession of lands bearing Sy. Nos. 244, 256 and 257 of Garagndoor Village of Somawarpet Taluk, Kodagu District. Petitioner claims that the lands are redeemed lands and he has got absolute right over the lands as well as trees standing therein. He has produced a copy of the Jamabandhi extract of Sy. Nos. 244, 256 and 257 for the years 1929-30, 1944 and 1993 and they are annexed as petition documents 'A, B and C' respectively. Petitioner with an intention to have better coffee cultivation in the lands in question, had approached the Deputy Conservator of Forests, Madikeri Division, Madikeri (hereinafter referred to as 'Forest Officer'), for grant of permission to cut and remove the overgrown trees. Pursuant to the request so made, it appears that the Forest Officer had accorded permission to the petitioner to cut and remove the overgrown shade trees in the lands in question. It appears, petitioner had cut more number of trees than what was permitted by the Forest Officer. In view of this illegal felling of trees by the petitioner, the Range Forest Officer of the area had booked a forest offence case in FOC No. 47/92-93, dated 23-2-1993 and seized the timber prepared out of illegally felled trees. Since the petitioner offered to compound the forest offence by paying the value of the materials illegally felled, the Forest Officer after accepting the offer had directed him to pay a sum of Rs. 1,39,087/-, being the value of timber. It appears, petitioner after paying the said amount under protest, had taken possession of the seized materials and transported the same to its destination.
3. Petitioner by his representation dated 13-7-1994, requested the Forest Officer to refund the seigniorage collected from him on the ground that the lands in possession are redeemed lands and he has got absolute right over the lands as well as trees standing therein, and further since he has cultivated coffee in the said lands, it is exempted from the purview of the Karnataka Preservation of Trees Act and the Rules framed thereunder. The Forest Officer after obtaining the report of the Revenue Officer, has rejected the claim made by the petitioner in his representation dated 13-7-1994 by his order dated 17-8-1994. Aggrieved by this order of rejection, petitioner is before this Court for an appropriate writ and direction.
4. In Writ Petition No. 34459 of 1995, the fact situation is more or less identical. Petitioners in this writ petition have paid a sum of Rs. 1,23,995/- being the seigniorage value of the trees and also a fine of Rs. 5,000/- and have transported the trees from the lands in their possession, which they had cut without the permission of the Forest Officer. Since their request for refund of the aforesaid amount is rejected by the Forest Officer, they are before this Court for appropriate directions.
5. In both these petitions, respondents have filed their detailed statement of objections, justifying their impugned orders and resisting the reliefs sought for by the petitioners. Their primary objection seems to be that the Deputy Commissioner of the District has opined in both the cases that the lands in question cannot be declared as redeemed lands, since the petitioners have failed to produce sufficient records in support of their stand that the lands are redeemed lands and therefore, they have absolute right and interest on the trees standing on the lands. They further assert that the claim of the petitioners that they have redeemed the trees standing on the lands by paying the necessary value of the trees cannot be accepted since petitioners have not produced any documentary evidence in support of their assertion. Nextly, it is stated that in the revenue records available in the office of the Deputy Commissioner (Revenue), there is no proof of change of terms of the lands in question and also redemption of tree growth as per law. Therefore, petitioners have no right over the trees standing on the lands. The respondents further contend that the lands in question is bane land and change of tenure has not been established by the petitioners by producing the relevant documents and there is no conclusive evidence for change of tenure or redemption as required under law. They also state that the mutation proceedings is mandatory procedure, to be followed with regard to change of tenure and the Commissioner or the Assistant Commissioner is required to pass an order, ordering the change of tenure or change of entries and such mutation proceedings and change in the mutation entries require to be mentioned in the Jamabandhi Registers. They further state on oath that there is no Rozinama Register with regard to such change of tenure and redeeming the tree growth, which is essential and mandatory in cases of redemption and change of tenure of lands. By asserting so, the respondents doubt the correctness or otherwise of the entries made in the 'Jamabandhi Register' and the extracts produced by the petitioners before this Court and therefore, they forcefully assert before this Court that no reliance should be placed on the Jamabandhi extracts produced by the petitioners and basing on a doubtful entry in the aforesaid document, petitioners cannot claim any right over the trees standing on the lands in their possession and therefore, petitioners are not entitled to any relief sought for in these writ petitions.
6. Sri T.I. Abdulla, learned Counsel for petitioners forcefully contends that the orders made by the Forest Officer for releasing the seized timber only on payment of the value of the trees is erroneous and unsustainable in law and contrary to the provisions of Karnataka Preservation of Trees Act and the Rules framed thereunder. Secondly, it is stated that in view of the Jamabandhi extracts that the petitioners had produced before the Deputy Commissioner (Revenue), the respondent-authority should have opined that the lands in question are redeemed lands and the petitioners have absolute right, title and interest over the trees standing on those lands and further, the revenue authority could not have observed that though the lands in question are redeemed lands, he cannot give a positive opinion whether petitioners have any right over the trees standing on the lands in the absence of documentary evidence to show that they had paid the value of the trees. Lastly, it is stated that the rejection of claim made by the petitioners for refund of illegally collected value of the trees by the Forest Officer is not only arbitrary, but also unfair, unjust and violative of Articles 14 and 21 of the Constitution of India. In aid of his submission, the learned Counsel invites my attention to the observations made by this Court in the case of Deputy Conservator of Forests v P.P. Ganapathi .
7. Per contra, Sri Udayshankar, learned Government Advocate ably justifies the impugned action of the respondents. The learned Counsel states that since disputed question of facts are involved in these petitions, this Court should decline to go into that questions and parties should be directed to approach the civil forum for redressal of their grievances. In support of this submission, the learned Counsel relies upon the observations made by the Apex Court in the case of State of Karnataka v Robert D'Silva.
8. Before I advert to various legal contentions canvassed by the learned Counsels for the parties to the Us, let me first notice the observations made by a Bench of this Court in P.P. Ganapathi's case, supra, on which a very strong reliance was placed by learned Counsel Sri Abdulla. In the said decision, Sri Ganapathi, who was the owner of lands comprised in Sy. Nos. 163/4 and 164/4 of Athur Village in Virajpet Taluk, had approached the Deputy Conservator of Forests, Madikeri, by filing an application for grant of permission to cut and remove certain trees standing on the lands. In the application, it was stated that the lands are redeemed paradheena lands under the Coorg Land and Revenue System. The application so filed was rejected by the Forest Officer relying on the opinion of the Deputy Commissioner (Revenue), who had reported that though the lands are redeemed paradheena lands, since the landowner had failed to produce the documentary proof for having paid the price of the timber, he does not have any right over the trees standing on the lands. Aggrieved by the said endorsement, Sri Ganapathi, was before this Court for appropriate reliefs and directions. The learned Single Judge had allowed the writ petition. The respondents therein, aggrieved by the said order had carried the matter in an appeal before a Bench of this Court, and the Bench of this Court by its order dated 28-1-1992, was pleased to reject the writ appeal following the observations made by the Apex Court in the case of State of Karnataka and Others v K.V. Khader . In the said decision, the Court was pleased to observe:
"From the portion of the judgment of the Supreme Court extracted above, it becomes clear that when the lands are undisputedly redeemed paradeena lands, it should follow that the price in respect of the tree growth was also collected at the time, when the lands were redeemed".
9. Significantly, in the aforesaid decision, it was not the stand of the Revenue Officer or that of the Forest Department that the entries made in the 'Jamabandhi Register' are fraudulent entries and the insertion of the expression redeemed lands in the Jamabandhi Register would not confer any right over the trees standing on the lands. In the said decision, the only assertion of the respondent-officers was that since the owners of the lands had not produced any documentary proof for having paid the value of the trees, though the lands are redeemed paradeena lands, they cannot claim any right, title or interest on the trees standing on the lands. This assertion of the respondents was rightly rejected by this Court in view of the law declared by the Apex Court in K.V. Khader's case, supra, wherein, the Court has observed:
".....The word 'Saguvali' means 'cultivation' and the word 'Malai' means 'hill'. It is common ground that the word redeemed used in this entry would show that the price of the standing timber on the said land had been paid by the grantee when the patta was made. It may be mentioned here that in the settlements in Coorg, where the land was granted with the endorsement "unredeemed", it meant that the standing timber had not been paid for and the grantee would have to pay for the same, if the grantee wanted to cut the trees and remove the timber from the land. In 1918, it appears that pursuant to an order made by the Commissioner, the said entry has been altered to unredeemed showing that the trees had not been paid for".
10. In the present case, the factual matrix seems to be different. The respondents on oath assert in their objections statement that they doubt the genuineness of the entries made in the Jamabandi Registers. They assert "that the handwriting and the ink found in the Jamabandi Registers for the years 1929-30 at page 16 are entirely different from the entries found in the same page as well as other pages". Their further assertion is that "the entries in column (2) are insertions and fraudulent entries". They also give various reasons pointing out that the entries made in the Jamabandi Registers in the present case cannot be believed in the absence of corroborative materials and documentary evidence. Their assertions cannot be lightly brushed aside nor it can be gone into in a petition filed under Article 226 of the Constitution. These disputed facts naturally require to be resolved by a forum which can record the evidence of the parties. I draw support for my reasoning, the observations made by the Apex Court in Robert D'Silva's case, supra. In the said case, the party before the Court had claimed that he has purchased the right over the tree growth and had not produced any materials to support the said claim as in the present case and further the State Government had also disputed tenure and claim of the petitioner as in the instant case. The Supreme Court in view of the disputed facts involved in the case was pleased to observe that writ petition is not an appropriate remedy and the High Court should decline to go into the question and adjudicate the same in a writ petition. Therefore, in my opinion, the observations made by this Court in Ganapathi's case, supra, would not assist the petitioner in any manner whatsoever.
11. Secondly, in these petitions it is not in dispute that the owners of the lands have cut and removed the overgrown shade trees in their coffee estates without permission of the forest authorities and assuming such permission is obtained, they have cut and removed more number of trees than what was authorised. In view of this illegal felling, the forest authorities have booked forest cases against these petitioners under the provisions of Karnataka Preservation of Trees Act and the Rules framed thereunder. As the petitioners had approached the forest authorities to compound the offence in lieu of prosecution proceedings, the forest authorities have compounded the offences by levying fine and by collecting the value of the trees as provided under Section 21 of the Act. Petitioners did not choose to question the said order and in fact have paid the amounts, which they say under protest and got release of the timber seized and have also transported the same. The offer was made by the petitioners to compound the offence before the prescribed authority under the Act in lieu of prosecution proceedings in respect of forest offences. The offer is made only because they knew that there is a possibility of being found guilty of the offence and upon satisfying themselves that what they have offered is within the prescribed parameters and that the person to whom the offer is made is the prescribed authority under the Act. Once the offer is made, it is for the prescribed authority to accept or to reject it. It is also open to the prescribed authority to suggest the sum as in its opinion would be appropriate, in which case it would be open to the petitioners to agree to pay such sum or not. In the present case, the offer was made by the petitioners for compounding the forest offences. The offer was accepted by the prescribed authority under the Act by directing the petitioners to pay fine and the value of the trees. This amount was paid by the petitioners may be under protest and compounding of the offence was complete. The fact that they have made payment would indicate beyond any doubt that they were willing party to the compounding and they cannot object thereto. This is yet another reason which persuades me to decline the relief sought for by the petitioners.
12. Thirdly, after paying the amounts as demanded by the authorities, and after securing the release of the seized materials, petitioners approached the respondents for refund of the amounts paid by them. This request is rejected by the forest authorities for the reason mentioned therein. In these writ petitions, the primary relief sought for by the petitioners is to direct the respondents to refund the amounts said to have been collected by them illegally. The claim for refund is not ordinarily entertained in a writ proceedings for the reason that, claim for such refund can always be made against an authority which had illegally collected the money and it is open to the authority to raise all possible offences which cannot be appropriately raised and considered by this Court in exercise of writ jurisdiction. On this issue, the law is now well-settled. The Apex Court in the case of Suganmal v State of Madhya Pradesh and Others, was pleased to observe as under:
"Though the High Courts have power to pass any appropriate order in the exercise of the powers conferred on them under Article 226 of the Constitution, a petition solely praying for the issue of a writ of mandamus directing the State to refund the money alleged to have been illegally collected by the State as tax is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax and in such a suit, it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction".
13. In the instant case, as I have already noticed, the assertions made by the respondents require an elaborate investigation of the same. These complicated questions cannot be resolved in a writ proceedings. Therefore, in my opinion, the reliefs sought for by the petitioners cannot be granted by this Court in exercise of its discretionary jurisdiction. Accordingly, petitions requires to be rejected.
14. In the result, petitions are dismissed. Rule discharged. Parties are at liberty to approach the Civil Court for redressal of their grievances, if the law permits subject to the provisions of Limitation Act. If for any reason, the Civil Court entertains the suit that may be filed by the petitioners, it is directed to examine the claim of the aggrieved persons independently, without being influenced by any one of the observations made by this Court in the course of these proceedings. No order as to costs. Ordered accordingly.