Karnataka High Court
N Ravishankar vs State Of Karnataka on 15 June, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALOR RE DATED THIS THE 15° DAY OF JUNE,. 2010 | BEFORE THE HON'BLE MR. JUSTICE A.N. VENUGOPALA S s0WDA REGULAR FIRST APPEAL NO.72/2002 BETWEEN: a "e 1. Sri N.Ravishankar, Aged 46 vears. 2. Sri. Kurnaraswamy, Aged.44 » yea FS. 3. Srin. Nat Aj, Aged ADs ears. All are soni Sof S Sri S \Narayanaswamy, Are resid 9 at Kattinamane - Haravari Village, Narasimharajapur Taluk, . Chickmag: ur District and are represented a By their (sPA holder Sri N.Narayanaswamy. .. APPELLANTS 7 "ey Sri T. Nii a Ragnupathy, Adv.) AND: 1. State. of Karnataka, Represented by its Chief Secretary, Vidhana Soudha, ~~ Bangalore - 560 001. 2. The Deputy Conservator of . Forests, Koppa Division, Koppa. .. RESPONDENTS (By Sri Jayacevappa, HCGP) This RFA is filed under Section 96 of CPC. against. the coment and decree dated © 15. 09. 2001 passed. in , This appeal coming on for hearing & this day, the Court delivered the following: -- Plaintifis/appellants filed. Sy / suit against defendants/-spendents, "for recovery of a sum_ of Rs150,000/, bem ng the value of Db! schedule timber or in the alternarve, . 0 direct the defendants to return to the plaintiffs the « schedule: 'DY timber and fire wood. 2. The 'anh case is that, they are the owners of the lands shown in Schedule A, B and C of the plaint. Their GPA~ holder had submitted an application on 12:11.1951 <o the 2™ defendant seeking permission for | felling the trees grown in the said properties. According to the plaintiffs. the 2 defendant did not-respond and failed -- to communicate the decision and being left with no other option, they jelled the trees which existed in the said lands during the month of October, 1992, Thereafter, the 2 + defendant and his staff inspected the spot during March, 1993 and issued expost facto permiss sion. The gna defendant transported the timber measuring 13. 179-cmtr : and 9.9 cmtr of fire wood to Chikkagrahara Range Forest Depot. The » laintift state that te ane defendant did not hold any enquiry nor. gavel any 'oppartunity to them, before auctioning the said. timber, despite several applications having b been sul 'omitte . "The plai ntiffs contend that, they have sufferer "loss of Rs, 1 (50, 000/- on account of the illegal action ofthe 2! va defenda nt. 3. ve 2" defendant fiied the written statement and denied 'he omaterial allegations made in the plaint, . However, it was admitted that the G.P.A.holder of plaintiffs had applied seeking permission for cutting and felling of silver oak and other trees grown on plaint schedule A, B - and C property. Before granting the feiling permission, a "joint Survey was conducted by the Forest and Revenue Department officials and the opinion of the Deputy Commissioner, Chikmagalur was also obtained. After the v joint Survey and = opinion, felling permission. dated 12.5.1992 was granted for only 48 silver oak trees. The ; right with regard to the remaining. 26 reserved trees was : refused by the Government. However, the applicant had felled 18 unpermitted trees, in violation of the O.M. dated 12.5,1992 and the: provisions. of Karnataka Tree Preservation Act ("the Act" for short) "and hence after inspection and: "drawing up mahazar, a case was registered on 24.9.195 by the Range F Forest Officer, Chikagrahara in FO.C.N0. 49/2 992-93.. - Defendants alleged that, the plaintiffs hay wey violated 5.8 and therefore the materials were confise: ated tc. the Government in accordance with a s 24D) of the Act as per the office order dated 10.3. 1993, a copy of which was communicated to GPA holder of the plaintiffs. Tt is alleged that, the plaintiffs' objections were _ called before the materials were confiscated to the ~ Government as per the communication dated 30.12.1992 | and the GPA of the plaintiffs acknowledged the receipt and an explanation was submitted, wherein it was admitted that the plaintiffs had felled inpernyes tress. It was defendants, «.1, an Assistant Conservator of Forest, "NaS examined, thiicugh whom Exs.D1 to D11 were marked. - i. 6. Considering the rival contentions. and upon appreciation of the evidence, the Jearned "Trial Judge answered issiie No.t, partly in the. affirmative, issues 2 and 3, in the negative and asa result, 'dismissed the suit with costs. -- Aggrieved, the plaintiffs "have preferred this appeal. (7. se T.N.Raghupathy, learned counsel appearing for the appe ants, firstly contended that, S.8 of the Act provides for: eeking permission for felling of trees and if = an applicatic: is made for felling, the Tree Officer does not S . communicate sis decision within 90 days from the date of the applicatio., such permission shall be deemed to have . been granted under S.8(4) of the Act and in the instant | _ case, itis an admitted fact that an application was filed on 12.11.1991 and no communication was sent by the defendant Ne.? to the plaintiffs within 90 days period and therefore the felling of trees by the appellants was proper "hy and legal anc hence, the felled timber could not have been taken away and confiscated by the defendants. "Secondly, | ; the learned Trial Judge has not appreciated the evidence of : PWi in correct perspective and the findings recorded and the conclusicn arrived at in' nthe impugned judgment is wholly erroneous and hence th e decree under challenge is liable to be reversed and the. suit is. liable "to be decreed, not for Rs. 1 - On, 000/- ; atleast for. a sum of Rs.37,727/- being the ari oe unt "realised in | the public auction by sale of the | Hegally softs cated. timber and that, the plaintiffs are also entitled "reasonable. interest. me 8. : S: Jayadevappa, learned HCGP appearing for .the respondents, on the other hand contended that, there was violation af the conditions imposed in the O.M. dated 12.5,1992 and also the provisions of the Act by the - plaintiffs, who had felled 18 trees illegally i.e., without "permission avi as such the 'D' schedule timber wood was confiscated im terms of the provisions of the Act and the confiscated wood was auctioned, wherein a sum of \. oe Fe helt Rs.37,727/- was realised. Learned counsel contended that the application was in respect of the trees. inv rural area 2 oF - the kind specified in schedule -- I and hence the period for : consideration was one year from the dete of receipt or application and since the 0, M, was issued on 2. 5.1992, i.e., within the > period allowed, "there was no deemed grant. Learned counsel contended that, che respondents have not committed | any kind of Hegalit in tine matter of seizure of the legally | ti Hed timber or in the matter of confiscation of the ann he sas, "submitted | that, the learned Trial Judge has appreciated t both the oral and documentary evidence in. ine correct perspective and that, there is no error or os "illegality Comvnitted in the matter appreciation of evidence - : and the cons quential findings recorded thereon. Learned counsel "submitted that, the admissions made in the . - evidence of Pv1, and the evidence of DW1i, supported by ; the documentary evidence, makes it clear that, the plaintiffs hac violated the conditions and had felled 18 trees contrary to the permission and also the provisions of the Act anc rence the action taken by the defendants a being in accordance with the provisions of the Act-and learned Trial Judge and hence no. interference' in' tne matter is caliec for. 9. | ave perused-the record. In view of the rival contentions, 'he point for consideration is: "Whether the learned Trial Judge has committed any error or 'illegality a the. matter of appreciation of eviderice: and in disrnissing the suit with costs?" "10. CPR holder. of the plaintiffs has deposed as PW1. Plainii(ls have executed Ex.P1- GPA in favour of PW. Ey.b2 '6 -the~ confiscation order dated 10.3.1993. -Ex.P3 is the | otice dated 7.10.1995 issued under $.80 CPC 'to the defedants Ex.P6 is the communication dated 22.8, 1995 revusing to return the timber, on account of its as seizure and confiscation pursuant to an order dated 10.3,1993. =x.P? dated 4.11.1995 is the reiteration of the contents of E=.P6, Exs.P8 to P15 are the RTC of the plaint A,B and C sciedule properties. \. Rogar SERIA dle deeds - Ae ws YY p AS bf6 8 ach BU Artray moddr aed Cyd s i plas. 10 11. ere is no dispute with regard. to the ho! ding and enjoyment of the property shown ine AL B and c schedule property, by the plaintiffs. "The dispute | is: with . regard to the timber shown. in schedule 'o to the plaint. PW1 has admitted that, pursuant to. the application submitted seeking. "felling "permission, the Forest Department issued . permission for transportation of 530 cmtr. - won 'The balance timber wood was confiscated by the Gover iment, "He has "categorically admitted in his cross 5 examina vf HON. as. follows: "Ae v4 ee TOA row widdy way + Af aia 4 bof *. Lina' 9 Lao joa 4 aiden Cedindet, | rem ySodidds Woss PLC umodds (Ae pidad. sped shad SONY baad, tod Wye ky - £46 Aged luday Ay ot A dae Cont Sede e btds He has farther admitted in the cross examination that, 18 _ trees, for which permission had not been granted were felled by the slaintiffs. 13. (.i-Channappa, an Assistant Conservator of forest, at Koopa, has stated that, the plaintiffs had made \y 11 an application seeking permission of the department to fell 74 trees, considering which the permission was granted for 7 ~ felling of 4&8 trees. Though. the plaints shad. | been ; permitted tc fell 48 trees only," in vioiation of the conditions, they had felled 18 more trees and hence the Range Forest officer registred a case against the plaintiffs on 24.9.1992. The said officer pr epared a mahazar in respect of Nags of the felled trees. EX, D1 is the FIR of the case registere0 against the plaintiffs for offence under S.8 of the Act. «bz is the mahazar dated 24.9.1992. Ex.D3 is the fist s show Ang. 18 felled trees, for which the permission had not been granted. Since the plaintiff had felled 18 - trees contra 'y to the terms and conditions of the O.M. * . deted 12. Bi 92, they had submitted a representation as at Ex,D4 for condoning of the lapse and for return of the - wood: The Deputy Conservator of Forest issued a show - cause notice to the plaintiff as at Ex.D5 dated 30.12.1992, wherein, the plaintiffs were granted one month's time for reply. The plaintiff submitted the reply on 5.2,1993, as at D6. The GPA holder of the _--_-- categorically a whe 12 admitted that 18 trees for which the felling permission had allegedly under a mistaken belief. The authority did not ; accept the reply and ordered for confiscation of the seized timber. Copy of the confiscation order is at Ex.D7. Thereafter the said. timber was sent to the Government Depot at N.&.Pura, _ The sala. timber Was sold in public auction held ow 21.4.1994 and RS.37,727/- was realised, which was "remitted to. the 'treasury, The plaintiffs subinitted 'a representation dated 7.8.1995 to the District Forest Officer to which 9 'reply dated 22.8.1995 was sent informing them of the confiscation and consequential - action taken. To the plaintiffs notice dated 7.10.1995 > -(EX.P3), redly was sent on 17.10.1995 (Ex.D11). 14, There is restriction on felling of trees in terms > _ of sub-section (1) of S.8 of the Act. $S.8(2) enables a "person desiring to fell a tree to apply to the concerned Tree Officer for permission in that regard. The plaintiffs through their GPA holder had made the application to the eon 13 DFO on 12.11.1991. In terms of S.8(3), 2 Tree Officer is entitled to inspect the trees and hold SUCHE -enqui ry. as a6 he a may deem necessary and grant per mission: in: whole. or in | part or refuse permission: "Such acti on "shalt take place. within the st ipulated period Trorn, the date of receipt of application as is evident from sub: secti ion (4) of S.8. Sub- section (5) of S.8 "enables the Tree Officer to grant Permission sub ject to the conditions, a5. "abby the property was inspected by the Tree, Of iser 'and the Revenue Dept. Officials and thereafter, permission was granted on 12.5.1992 for felling of 48 trees. P Permission was refused in respect of 28 trees. . According to the plaintiffs, the trees were felled in October, 1992. "Said 'stand of the plaintiffs cannot be accepted in view. of the fact that the RFO inspected the property on a 24, 99. 92 and found that the plaintiffs had felled 18 trees for which permission had not been granted. Hence, a mahazar wes prepared in the presence of panchas (Ex.D2). The list of 18 trees, ou \ been felled Sh. al "9 14 without the permission was also prepared (Fx.D3): . Besed on the said spot inspection, 2.case Was. registered for ; violation of S.& of the Act, on 24, 09, 92, which is evident ; from the FIR at Ex.D1. GPA, holder of the ple ntiffs in nis: representation as at EX. D4, "has. admitted that without obtaining the permission, the olaintiffs felled 18 trees in respect of which, case. was registered by. Kudregundi RFO. It was prayed. therein that, the matter be decided at the Department evel 'self. Based 'on the report of the RFO, show- canse th atice Gated 30.12.92 (Ex.D5) was issued to the GPA Holder oF "the plamntis, to which he submitted the reply dated: 05.01.93 (Ex.D6), wherein, it was admitted - "thet, an anticipation of the grant of permission and on - "account. ¢ of ; mistaken notion, 18 trees for which permission hac not been accorded were felled. It is upon os, consideration of the record and the said reply, the ; eorifiscation order dated 10.03.93 (Ex.D7 / Ex.P2) was passed, wherein, the illegally felled trees / wood was confiscated, which was subsequently sent to the Forest Depot, wherein it was sold in public ve '. aa 15 16. From the scheme of the Act, tis cleor that, permission is required to be tained for f alli ng: of trees, - irrespective of whether they are situated inva "private or Government jand. The permission, can be subject to the stipulated conditions. There is provision under 5.14 for preferring an appeal i in: case OF refusal fo grant permission. The permission was granted « on. 12.5 1982 and there was a specific con divans, Permission in respect of 18 trees was refused since , "the conditi ons were not challenged, the plaintiff sh ayer ale hot have 'felied the 18 trees in derogation thereof. "The "conditions or the refusal having not been chailenged, the plaintiff could not have felled the trees = beyond the pe rmitted extent. It is on account of felling of 12 trees, which had not been permitted, in the permission granted on 12.5.1992, the timber thereof was seized and : ISSUING a show cause notice, the confiscation order was _ passed, which remained unchallenged. Hence the suit is not maintainable. LE 16 17. Even otherwise, from the eviderice on record, it is clear that the plaintiffs had. felled 18 trees for: which permission had not been accorded and the. contentien that there was a deamed perm 'ssion for felling, | in the fa cts and circumstances of the case,. "eannot be: 'accepted, On account of the violation of the: piovisions contained in 5.8(2), the con rfiscation order "under § .21(b) of the Act has been passed or on 10. 03, 93. "Since the ifegally felled trees have been cou is scaved by virtue. of the statutory provisions made in the » Act tthe plaintiffs are not entitled for either return of the ised trees 'as at Ex.D3 which were seized under: Ex.D2 or "the value realised therefrom in public ; "auction, aroun nting to RS.37,727/-. 18.5 The learned Trial Judge has correctly appreciated the evidence on record and the findings ~-recerded on the issues, are justified. There is neither any error nor any materia! irregularity committed by the learned Trial Judge in recording the findings and in dismissing the suit. Even after re-appreciation of the .
a 17 evidence, the one and the only conclusion that can follow is that the action of the defendants is not illegal and-hence the plaintiffs are not entitled any. relief. In the result, the appeal fails and stands dismissed. However, in the facts and. circumstances of the case, the parties to bear their respective costs. Soe S4/-
- JUDGE Ksj/-
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