Karnataka High Court
N Mahabaleshwar Bhat vs The State Of Karnataka on 28 November, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:48980
WP No. 51014 of 2013
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 51014 OF 2013 (GM-FOR)
BETWEEN:
N MAHABALESHWAR BHAT
AGED ABOUT 70 YEARS
SINCE DEAD BY LR's
SMT. GAYATHRY
W/O N.M. KUMAR
AGED ABOUT 54 YEARS
R/AT BILIGERI VILLAGE AND POST
MADIKERI TALUK
KODAGU DISTRICT 571 201
(AMENDED AS PER COURT ORDER DATED 6.1.2023)
...PETITIONER
(BY SRI. H R DURGAPRASAD., ADVOCATE)
AND:
Digitally signed
by SHWETHA 1. THE STATE OF KARNATAKA
RAGHAVENDRA REP BY THE SECRETARY
Location: HIGH REVENUE DEPARTMENT
COURT OF VIDHANA SOUDHA
KARNATAKA
BANGALORE-560001.
2. THE DEPUTY COMMISSIONER
KODAGU DISTRICT
MADIKERI TALUK
KODAGU DISTRICT 571 201
3. THE DEPUTY CONSERVATOR OF FOREST
KODAGU CIRCLE,
MADIKERI
KODAGU DISTRICT 571 201
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NC: 2024:KHC:48980
WP No. 51014 of 2013
4. THE CHIEF CONSERVATOR OF FOREST
KODAGU CIRCLE
MADIKERI
KODAGU DISTRICT 571 201
...RESPONDENTS
(BY SRI. N.B. PATIL., AGA FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDAI PRAYING TO ISSUE A WRIT OF
MANDAMUS OR AN ORDER OF THAT NATURE TO THE R-3 & 4 FOR
REFUND OF A SUM OF RS.4,33,082.35/- (FOUR LAKHS THIRTY
THREE THOUSAND EIGHTY TWO & THIRTY FIVE PAISA) TO THE
PETITIONER BY SETTING ASIDE THE ORDERS DT.25.4.2012 &
4.4.2013 PASSED BY THE R-3 & 4 WHICH ARE MARKED AS ANNX-C
& ANNX-D.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
1. The Petitioner is before this Court seeking for the following reliefs:
a. Issue of writ of Mandamus or an order of that nature to the Respondents 3 and 4 for refund of a sum of Rs.4,33,082.35/- (Four lakhs thirty three thousand and eighty two and thirty five paisa) to the petitioner by Setting aside the orders dated 25.04.2012 and 4.4.2013 passed by the R3 and R4 which are marked as Annexure-C, No.A8/GL-
194/MA.HA/2010-11 and Annexure-D, No.Bhoomi/Tree Authority/476/2012-13. b. To pass such other order or direction as deems fit and proper to grant in the circumstances of the -3- NC: 2024:KHC:48980 WP No. 51014 of 2013 facts of the case to meet the ends of justice and equity.
2. The petitioner claims to be a purchaser of lands in Sy.No.23 measuring 25 acres and Sy.No.29/7 measuring 13.23 acres situated Biligeri Village, Biligeri Post, Madikeri Taluk, Kodagu District. The petitioner had made an application to the Deputy Conservator of Forest for cutting 349 trees, which was so accorded on 01.02.1983 with a condition that the petitioner would be liable to deposit the value of the timber cut and removed. In that background, the petitioner valued the trees at Rs.4,33,082.35/- and deposited the same. After the trees were cut and removed, the petitioner realizing that the above land was an alienated Sagu Bane land, which had been accessed to land revenue, had made an application for refund of the money since there was no provision for the Conservator of Forests to impose a condition for depositing of the above amounts since the land exclusively belonged to the Petitioner and as -4- NC: 2024:KHC:48980 WP No. 51014 of 2013 such, any produce on the said land belonged to the Petitioner. The said request came to be rejected by an order dated 25.04.2012 by the Assistant Conservator of Forests contending that the earlier alienation of the Sagu Bane lands in the year 1897 cannot be considered under the Land Revenue Act, 1964 and as such, the amounts could not be refunded. It is challenging the same that the Petitioner is before this Court.
3. The learned counsel for the petitioner would again reiterate that once the sagu bane land has been alienated and admitted to revenue and the owner thereof has been making payment of the revenue, the land becomes the exclusive property of the owner, that is, the petitioner herein. The State not being the owner of the land, the petitioner being entitled to the land in his own right, the State cannot assert any title on any trees which have been grown on the said land and in this regard, he relies upon -5- NC: 2024:KHC:48980 WP No. 51014 of 2013 the decision of this Court in the case of E.G.White vs. State of Karnataka1 more particularly Paras 5 and 12 thereof which have been reproduced hereunder for easy reference:-
5. The petitioners have produced a certified extract of the Jamabandi of wet and dry, Coffee etc., of Kodagarahalli village for the year 1975 in respect of the two lands in question. It has been specifically stated in the said extract of Jamabandi that the lands in question are the Paradheena Bane Land (alienated bane lands) from the year 1882-1883.
The correctness of these entries in the record of rights have not been disputed and on the contrary, as pointed out above, it has been stated in the statement of objections that these lands are alienated bane lands. In view of these undisputed facts, the question that arises for consideration is;
"Whether the title to the trees standing on the lands in question can still be said to vest in the State Government inspite of the fact that the lands have become alienated bane?"
12. The contention of the learned Counsel for the petitioner is that in respect of all those trees standing on the lands in question on the date when the lands in question ceased to be 'bane land' and became 'alienated bane lands', the Government continued to have its title to only such trees. But, in respect of the trees which have been grown afterwards subsequent to the date of the lands in question becoming 'Paradheena bane lands' in the year 1882-1883, either from the stumps or roots of the trees so cut and removed or otherwise grown are not Government trees. Therefore, it was submitted that the 3rd respondent ought to have enquired into the application filed by the petitioners and ought to have found as to whether the trees standing on the lands in question on the date of 1 (1979) 2 Kar.L.J., 233 -6- NC: 2024:KHC:48980 WP No. 51014 of 2013 filing of the application could be said to be the trees which were existing on the lands in question on the date when the said lands became 'paradheena bane lands' in the year 1882-1883. In view of the provisions contained in Rule 128 of the Karnataka Forest Rules, and especially, with reference to the exemption clause contained therein, the contention put forth by the learned counsel for the petitioner in this regard, merits acceptance. Accordingly. I hold that the Government cannot claim title to the trees that have been grown on the lands in question after the lands became alienated bane and the Malki of such trees including the trees grown from the stumps or roots of the trees cut and removed vests in the petitioners and they will be entitled to cut and remove the same without paying the value of the timber on obtaining the transport passes in accordance with the provisions contained in the Karnataka Forest Act. The statement of objections filed by the respondents does not throw any light on this aspect of the case and the statement of objections mainly relates to other lands which are not in question in this writ petition. Thus, it is clear that the title of the Government to the trees standing on the lands in question and so also the right of the petitioners to cut and remove the trees standing on the lands in question; without payment of any amount towards the value of the trees depend upon the determination to be made as to whether on the date when the lands in question became 'alienated bane lands' in the year 1882- 1883, the trees standing on the lands in question as on the date of the application i.e., 4-10-1974, were in existence. It is the case of the petitioners that the trees standing on the lands in question as stated earlier, came to be planted by the ancestors of the petitioned after the lands in question became 'alienated bane'. Without making an enquiry and without determining the aforesaid question, the application made by the petitioners as per Exhibit- A, could not have been rejected by the 3rd respondent. Consequently, the endorsement- Exhibit 'D' issued by the 3rd respondent stating that there is no provision in the Karnataka Forest Act, 1963 and Rules framed thereunder, for the -7- NC: 2024:KHC:48980 WP No. 51014 of 2013 redemption of the trees grown on the 'bane lands' of Coorg District and the application of the petitioners cannot be considered, cannot at all be sustained and the same is liable to be quashed. Consequently, the endorsement issued by the 3rd respondent, produced as Exhibit-D is hereby quashed and the 3rd respondent is hereby directed to enquire into the application dated 4-10-1974, produced as Exhibit A, made by the petitioners and to determine as to whether the trees grown subsequent to the date of the lands in question becoming 'alienated bane' in the year 1882-1883 or were in existence on the aforesaid date when the lands in question became alienated bane. If, as a result of an enquiry, the 3rd respondent were to come to the conclusion that the trees standing on the lands in question have been grown either from the stumps or roots of the trees so cut and removed or otherwise grown subsequent to the date of the said lands becoming 'alienated bane' in the year 1882-1883, the petitioners will be entitled for issue of the necessary permits and the 3rd respondent shall issue such permits to cut and remove the trees standing on the lands in question subject to the compliance with the provisions of the Karnataka Trees Preservation Act, without insisting for the payment of the value of the timber. 3.1. By relying on E.G.White's case, the submission of the learned counsel for the petitioner is that once the land has become alienated, the State cannot contend that the trees standing on the land should vest with the State Government and on that basis, he submits that the above petition is required to be allowed.
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4. Learned AGA would submit that challenging the order of the Assistant Conservator of Forest, the petitioner had filed an appeal before the Chief Conservator of Forest, which came to be rejected vide order dated 04.04.2013 by holding that the petitioner himself having accepted the condition for payment of the amounts, no refund could be sought for. The said order was further sought to be supported by contending that even as per the application filed, the petitioner indicated the land to be sagu bane and not as alienated sagu bane land. The learned AGA seeks to support the above orders by contending that the very application filed by the petitioner would indicate that the land is sagu bane land and even as per the petitioner when the application was filed it was not shown as alienated sagu bane. The petitioner having accepted the condition, the petitioner cannot resile from the same and as such, the order passed by the -9- NC: 2024:KHC:48980 WP No. 51014 of 2013 Assistant Conservator of Forests and Chief Conservator of Forest is proper and correct.
5. Heard Sri.H.R.Durga Prasad, learned counsel for the petitioner and Sri.N.B.Patil, learned AGA for respondents No.1 to 4 and perused papers.
6. The short question that would arise for consideration is whether a payment made under mistake by the owner of alienated sagu bane land is required to be returned by the State when the mistake is realized by the owner and an application filed for refund of the monies?
7. Insofar as the aspect of vesting of trees on alienated sagu bane land is concerned, this Court in E.G.White's case has categorically held that when a bane land is alienated which would include a sagu bane land, the State cannot claim any interest in the trees or any malkis on the said land. That being the case, in the present case, it is clear from the order
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NC: 2024:KHC:48980 WP No. 51014 of 2013 dated 29.03.2010 of the Deputy Commissioner, which has been produced at Annexure-A that the Deputy Commissioner has categorically held that the land subject matter of the present proceedings are alienated sagu bane land and have been admitted to revenue thereby conferring an exclusive ownership right to the petitioner.
8. Once the land on the records of the Revenue Department is held to be an alienated sagu bane land, whether the petitioner made an application showing the property to be sagu bane land or alienated sagu bane land would be irrelevant since it is only by a mistake that the land has been shown as sagu bane land even though the land had been alienated way back in the year 1897. In fact, it was for the Assistant Conservator of Forest and the Chief Conservator of Forest to verify these from the concerned records and not go by the statement made by the petitioner himself. Whenever any
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NC: 2024:KHC:48980 WP No. 51014 of 2013 application is filed by any person claiming permission to cut trees, there is a duty imposed on the authority granting such permission to verify the details. If at all the details had been verified, it would have been clear that the land in question is alienated sagu bane land and not un-alienated sagu bane land. This aspect has been made clear by the Deputy Commissioner in his order dated 29.03.2010.
9. In that view of the matter, the respondent-State cannot seek to take advantage of a mistake committed by a citizen in showing the land to be sagu bane land when it is alienated sagu bane land in order to retain the amount paid by a citizen to the State. Hence, I answer the point formulated above by holding that the payment made under mistake by the owner of alienated sagu bane land is required to be returned by the State when the mistake is realized by the owner of the land in question and an application is filed for refund of the monies paid.
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10. In the above circumstance, I pass the following:
ORDER
i) The Writ Petition is allowed.
ii) A certiorari is issued, the orders dated 25.04.2012 and 04.04.2013 passed by respondents No.3 and 4 vide Annexure-C and D respectively are quashed.
iii) A mandamus is issued directing respondents to refund a sum of Rs.4,33,082.35 with interest at the rate of 6% per annum from the date on which the deposit was made, till the payment thereof.
SD/-
(SURAJ GOVINDARAJ) JUDGE PRS List No.: 1 Sl No.: 35