Karnataka High Court
The Deputy Conservator Of Forests vs Sri Udaya Eshwaran on 20 December, 2018
Equivalent citations: AIRONLINE 2019 KAR 43, 2019 (1) AKR 712
Bench: L.Narayana Swamy, P.B.Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT APPEAL NO.6643/2017(GM-FOR)
BETWEEN:
1. The Deputy Conservator of Forests
Madikeri Division
Kodagu District- 571 215
2. The Chief Conservator of Forests
Kodagu Circle,
Madikeri
Kodagu District- 571 215
3. The Additional Principal
Chief Conservator of Forests
(Forest and Resources)
Govt. of Karnataka
Aranya Bhavana, 18th Cross
Malleshwaram
Bengaluru-560 003 ..APPELLANTS
(BY SRI SHIVAPRABHU S HIREMATH,
ADDL.GOVT. ADV.)
AND:
Sri Udaya Eshwaran
S/o late K.S.Eshwaran
Aged about 55 years
2
R/at 2nd Madapura Estate
Kirudale Village, Suntikoppa Nad
Somavarapet Taluk
Kodagu District-571 215 ... RESPONDENT
(BY SRI A.K.SUBBAIAH AND SMT. LEELA P DEVADIGA,
ADVOCATES)
THIS APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO
ALLOW THIS WRIT APPEAL AND SET ASIDE THE
ORDER DATED 20.02.2017 PASSED BY THE LEARNED
SINGLE JUDGE OF THE HON'BLE HIGH COURT OF
KARNATAKA, BENGALURU IN W.P.No.29589/2015
AND ETC.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED ON 22.11.2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
BAJANTHRI J., DELIVERED THE FOLLOWING:
JUDGMENT
In the instant appeal, the Deputy Conservator of Forests and others - Government have assailed the judgment of the learned Single Judge passed in W.P.No.29589/2015 dated 20.02.2017.
2. The respondent had sought for a direction to appellant nos.1 and 2 to immediately cause the refund of 90% of sum of Rs.4,31,01,400/- along with interest @ 12% p.a. by way of damages from the date of auction till the date of payment.
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3. The brief facts of the case are that:
- Respondent is stated to be owner of the coffee estate at Sy.No.56/3 of Kirudale Village, Suntikoppa Nad, Somwarpete Taluk, Kodagu District. It seems, he had submitted an application seeking permission of the appellant to cut and transport over matured trees stated to have grown on his coffee estate. His request was turned down by appellant no.1 by his order dated 01.02.2012 which was the subject matter of Writ Petition No.10761/2012. On 21.08.2013, the aforesaid petition was disposed of with a direction to the appellants to consider the respondent's application keeping in view the existing law and the earlier orders passed by the Deputy Commissioner. Appellant no.1 granted permission to cut the trees on 01.02.2014 Respondent cut the trees and transported them to the Government Timber Depot, which was auctioned on 20.12.2014. The auction consideration is Rs.4,31,01,400/-. As the appellants did not released the auction amount, he had filed a petition before this Court which was disposed of on 20.02.2017 in 4 W.P.No.29589/2015. Learned Single Judge allowed the petition while holding that petitioner is entitled to the auctioned amount along with interest.
4. Feeling aggrieved by the order of the learned Single Judge dated 20.02.2017, the appellants have presented this appeal.
5. Learned counsel for the appellants contended that the timber cannot be utilized by the Bane holders unless he pays the full value of the timber of such trees. It was contended the standing trees in the Bane vested with the Government in terms of Coorg Land Revenue Regulations or under the Karnataka Land Revenue Act, 1964. It was also submitted such privileged and unprivileged Bane, the concerned holder has no right or vested interest over the subsoil of the Bane under any law.
6. It was further contended that land in Sy.No.56/3 of Kirudale Village is unredeemed and alienated Bane land. On 18.01.2010 the Deputy 5 Commissioner, Madikeri based on the jamabandi of 1902, concluded that these lands became Paradheena in the year 1902. Even the Government Order dated 18.12.1996 has been cited relating to clarification on the rights of an occupant were trees of paradheena lands to the extent "Further directed to state that the rights over tree grown in respect of alienated jamma bane lands are available only in respect of redeemed jamma bane lands" whereas the schedule land is not of that category in which timber value was paid by the respondent. The unredeemed lands in Kodagu District are those where the value of the trees existing is not paid for. In support of this contention, learned counsel for the appellants relied on decision of the Full Bench of this Court in CHEEKERE KARIYAPPA POOVAIAH vs STATE OF KARNATAKA reported in ILR 1993 Kar. 2959 (para.16) wherein it is held that alienated Bane holders had no ownership rights over the trees naturally grown on Bane lands; they had no sub-soil rights in such Bane Lands; they have limited proprietory rights of cultivating land on payment of full assessment and 6 cutting and removing crops grown; status-quo ante continued after 1964 Act; under Section 70 of the Karnataka Land Revenue Act, 1964.
7. It was also submitted that disputed questions of facts and the right, title over the tree growth were the subject matter of litigation under Article 226 established in Coorg or place of such nature. The Hon'ble Apex Court by its order dated 10.04.1996, STATE Vs ROBERT D'SOUZA allowed the SLP (Civil) No.4262/1996 and held that in such matters, the Court below should not entertain the Writ Petitions under Article 226 of the Constitution whereas in the present lis, the appellants are disputing the ownership of the respondent. Therefore, unless and until the respondents have established their right over the property i.e., survey number. In support of the appeal, the appellants have relied on various provisions of the Revenue Act, 1964 like Section 75(1) which was the subject matter in W.P.Nos.4797 and 4795/1977 which was disposed of on 19.04.1982 (JOHN T vs DIVISION 7 FOREST OFFICER, MERCARA) wherein Section 75(1) of the Revenue Act, 1964 has been taken into consideration.
8. It was further submitted that tree felling permission granted under Section 8 of the Karnataka Preservation of Trees Act, 1976 on 01.02.2014 permitting to cut, fell, remove and transport 107 Rosewood trees and 506 of trees of other species in an area of 93.62 acres (37.89 hectares) in Sy.No.56/3 of Kirudale Village, Suntikoppa Hobli, Somarpet Taluk, Kodagu District was contrary to Section 2 of the Karnataka Preservation of Trees Act, 1976. Section 2(1)(g) defines 'tree' which does not include Sandalwood and rosewood trees. Thus, permitting to cut, fell, remove and transport 107 rosewood trees is contrary to aforesaid statutory provision.
9. It was also contended that an area of 93.62 acres (37.89 hectares) in Sy.No.56/3 of Kirudale Village, Suntikoppa Hobli, Somarpet Taluk, Kodagu District Village, admittedly is a paradheena (alienated) bane 8 land. The alienated Bane Lands in Kodagu District are held to be forest lands in view of the fact that neither the Karnataka Forest Act, 1963 nor the Forest (Conservation) Act, 1980 has defined the term 'Forest'. The Hon'ble Apex Court had an occasion to define 'Forest' in its order in T.N.GODAVARMAN THIRUMULKPAD vs UNION OF INDIA & ORS. reported in AIR 1997 SC 1228, SAMATHA vs STATE OF ANDHRA PRADESH reported in AIR 1997 SC 3297, B.L. WADHERA vs UNION OF INDIA reported in 2002(9) SCC 108, M.C.MEHTA vs UNION OF INDIA & ORS. Reported in AIR 2004 SC 4016, In RE.:
CONSTRUCTION OF PARK AT NOIDA NEAR OKHLA BIRD SANCTUARY: ANAND ARYA & ANR. IN T.N.GODAVARMAN THIRUMULKPAD vs UNION OF INDIA & ORS. reported in 2010 ((2011)1 SCC 744). Thus, the appellant had erred in giving permission to cut the trees as desired by the respondent in his application for cutting the overgrown trees to the extent that, "whether respondent was a owner of such trees (Bane land), since the matter would go to the root of the 9 case relating to owner of the overgrown trees in (Bane land). Moreover, respondents have not made any payment so also there was no demand from the Government. The respondents have no legal or vested right to claim auction money with reference to giving permission to cut the tree and to deposit tree - timber in the Government and to receive auctioned amount as it would violate various provisions stated and decisions of this Court as well as Apex Court. The respondent has not established his right over the trees/timber so also under the Trees Act, 1976. Rosewood would not fall under the definition of trees. That apart, State exchequer money is involved if the learned Single Judge's order is implemented. Learned counsel for the appellant in support of the appeal relied on the following decisions:
(i) E.G.White and Ors. Vs State of Karnataka & Ors.
reported in 1979(2) KLJ 233.
(ii) T.John and Anr vs Divisional Forest Officer, Mercara and Ors decided on 19.04.1982 in WP No. 4795/1977.
(iii) Cheekere Kariyappa Poovaiah Vs State of Karnataka reported in ILR 1993 Kar. 2959.
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(iv) K.P.Prabhakar Vs The Deputy Conservator of Forest, Virajpet Division, Virajpet and another reported in 2009(3) KLJ 545.
(v) State of Karnataka Vs T.V.Ramaraju Naidu reported in 1975 (2) KLJ 205.
(vi) State of Karnataka and Ors. Vs Mrs.Elizabeth Mayne and Ors. reported in 1976 (3) SCC 418.
10. It was further contended that the learned Single Judge erred in relying on Y.N.RAGHUNATH VS THE CHIEF CONSERVATOR OF FOREST decided on 5th March 2015 (unreported) and one more case of the same parties decided on 28th March 2016 (unreported) Further, he relied on the following the Apex Court decision in CENTRAL COUNCIL FOR RESEARCH IN AYURVEDA & SIDDHA AND ANOTHER vs Dr.K.SANTHAKUMARI reported in (2001)5 SCC 60 to contend that a wrong decision or admission on question of law made before Court by counsel will not bind his client. Therefore, opposite cannot seek benefit on the basis of such concession.
11. Per contra, learned counsel for the respondent filed written submission wherein it was 11 contended that appellants were prevented from taking new plea in the Writ Appeal. That apart, question of law has been raised without giving any opportunity to the respondent. Therefore, they were prevented from taking new plea in Writ Appeal. Since, there is no error committed by the learned Single Judge while allowing the petition. It was further contended that in an identical matter, this Court extended the benefit as granted by the learned Single Judge which was affirmed by the Division bench in writ Appeal in the case of Y.N.Raghunath cited supra. The contentions in Y.N.Raghunath's case in Writ Appeal reads as under:
"11. Mr.Y.H.Vijay Kumar, learned additional government advocate, appearing for the respondent in the writ petition, submits that the trees grown in a paradeena bane land belong to the State and the writ petitioner has no right in respect of those trees.
12. In the statement of objections filed by the respondent there is a categorical admission that the trees grown in the land in question were planted and grown by the owner after the land became paradeena bane land. There is a categorical statement by the writ petitioner that the trees were grown after the land became paradeena bane land. 12 There was no denial in the statement of objections".
12. It was also submitted that Judgment passed in W.A.NO.1611/2015 by the Division Bench of this Court, Supreme Court has affirmed in S.L.P.No.14226- 27/2016 by its order dated 05.08.2016. Thus, appellants have not made out a case so as to interfere with the judgment of the learned Single Judge.
13. Heard the learned counsel for the parties.
14. The crux of the matter in the present appeal is:
(i) Whether appeal is maintainable or not with reference to new plea read with the statutory laws like Coorg Land Revenue Regulations, Karnataka Land Revenue Act, Karnataka Preservation of Trees Act etc.
(ii) Whether respondent had been given an opportunity to the extent of determination of owner of the tree(timber) in Sy.No. 56/3 or not?13
15. At the outset, State-Appellants have failed in their duty and so also committed glaring error in permitting the respondent to cut certain trees for the purpose of converting them into timber and consequential auctioning in the Government Timber depot as if, tree - timber is owner of the respondent. That apart, appellants have failed to appraise question of law relating to who would be the owner of the tree- timber which was situated in Sy.No.56/3. For the first time, various questions of law has been raised in the present appeal which was objected by the respondent stating that new pleas cannot be raised in a Writ Appeal. The appellants in support of new plea- question of law could be raised in an appeal if any concession is made before the Court, that does not enure to the benefit of the party, if it is contrary to statutory provision- law. Hon'ble Supreme Court in the case of CENTRAL COUNCIL FOR RESEARCH IN AYURVEDA cited supra. From the principle laid down in the aforesaid decision of the Supreme Court it is evident, that if any concession is given by a counsel in the Court 14 of law, if it is contrary to any statutory law, such concession and decision of the Court is not binding on the parties. That apart in the present matter, for the purpose of extending monetary benefit to the respondent, determination like who is the owner of the tree(timber) is required to be determined under various statutes as quoted by the learned counsel for the respondent which are as follows:
1. Notification by Govt of India, Chief Commissioner, of Coorg, 1885.
2. Notification by Govt of India, Chief Commissioner,of Coorg, 1886.
3. Rules under Coorg Land & Revenue Regulation, 1899
4. (a) Appendix III-DEFINITIONS to the Rules under Coorg Land & Revenue Regulation.
(b) Appendix IV- to the Rules under Coorg Land & Revenue Regulation.
5. (a) Land Revenue Re-Settlement of Coorg (Kodagu District), Mr.Gustav Haller, 1910.
(b) Appendix B-Rules for Classifiers.
6. The Chief Commissioner of Coorg Notification, 1913.
7. Karnataka Forest Act, 1963.
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8. Karnataka Forest Rules, 1969.
9. Karnataka Land Revenue Act, 1964.
10. The Karnataka Preservation of Trees Act, 1976.
11. The Karnataka Preservation of Trees Rules, 1977.
16. Having regard to the contentions of the appellant, it is necessary to determine who is the owner of the trees-timber, whether Government or the respondent in the Sy.No.56/3? In this regard, appellants have failed to determine while permitting the respondent to cut the trees for the purpose of converting them into timber. Without such determination and proceeded to permit respondent to cut the trees, is even though illegal at the same time even now, the appellants could determine who is the owner of the tree (timber) and if, appellants find that respondent is owner of the tree (timber), in that event respondent is entitled to monetary benefits arising out of cutting of trees and converting them into timber, which has been auctioned 16 and to what extent auction amount is to be disbursed to the respondent in accordance with law.
17. Undisputedly, respondent has not been provided an opportunity insofar as self serving statement of the appellant to the extent that appellant- Government is the owner of the tree(timber) which were grown in Sy.No.56/3. Therefore, without going into the merits of the case, it is appropriate to set-aside the order of the learned Single Judge and direct the appellants to give ample opportunity of written and oral hearing to the respondent by furnishing relevant statutory provision to contend that owner of the tree would be the Government and not the respondent. Thereafter, competent authority has to take appropriate decision and communicate the same to the respondent.
18. In view of the above facts and circumstances, learned Single Judge's order passed in W.P.No.29589/2015 dated 20.02.2017 is set-aside. 17
19. The appellants are hereby directed to issue a detailed show-cause notice to the respondent while highlighting relevant statutory provision read with Judicial pronouncement to enable the respondent to submit his explanation. Such notice shall be served on the respondent within a period of eight weeks from the date of receipt of certified copy of this order. The respondent is permitted to file a detailed explanation to such notice which would be issued by the appellant. After receipt of the respondent's explanation to the show cause notice, competent authority is hereby directed to provide an oral hearing and pass a speaking order after considering each of the contentions raised by the respondent. Such order shall be passed within eight weeks from the date of receipt of respondent's explanation and oral hearing and communicate the order to the respondent at the earliest, not beyond ten weeks from the date of receipt of explanation read with oral hearing of the respondent to the show cause notice. Respondent is entitled to cost of Rs.50,000/- due to misleading respondent in permitting him to cut the 18 trees and handing over timbers to Government - Appellants for which respondent has taken much pain and loss of time on account of Appellants-Officers dereliction in the matter.
Writ Appeal stands disposed.
Sd/-
JUDGE Sd/-
JUDGE brn