Remanded

Mrs Umadevi Nambiar v. the Conservator of Forest

Karnataka HC30 May 2023WP/42053/2015

Case brief

AI extract

What is this about?

The Court held that the impugned order denying tree ownership rights on alienated lands was unsustainable due to a change in the definition of 'occupant' under the Karnataka Land Revenue Act. Consequently, the writ petitions were disposed of by quashing the order and remitting the matter for reconsideration.

What did the court decide?

Quashed the impugned order at Annexure-A and remitted the matter to Respondents for fresh consideration to determine land classification, redemption status, and tree ownership rights.

Mrs Umadevi Nambiar Vs the Conservator of Forest — Property and Title | Karnataka HC (2023)

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1 - WP No. 42053 of 2015 C/W WP No. 42054 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF MAY, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO. 42053 OF 2015 (GM-FOR)

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C/W

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WRIT PETITION NO. 42054 OF 2015 (GM-FOR)

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BETWEEN:

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MRS. UMADEVI NAMBIAR, W/O SRI K.P.P. NAMBIAR, AGED ABOUT 61 YEARS, R/AT NO.571, 1^ST MAIN, 3^RD BLOCK, RMV 2^ND STAGE, BANGALORE-560 055. REP. BY HER POWER OF ATTORNEY HOLDER, SRI P.NAUSHAD, S/O P.C. ASSAINAR, AGED ABOUT 35 YEARS, R/A: PEE CEE BUILDING, MADIKERI ROAD, SIDDAPUR, VIRAJPET TALUK, KODAGU DISTRICT-571 201.

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…PETITIONER (COMMON)

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[BY SRI. VIKRAM HUILGOL, SR. ADVOCATE FOR SRI. ARNAV A. BAGALWADI, ADVOCATE (PH)]

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AND:

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Digitally signed by GEETHAKUMARI PARLATTAYA S

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Location: High Court of Karnataka

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THE CONSERVATOR OF FOREST, MADIKERI,KODAGU DISTRICT-571 201.

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THE DEPUTY CONSERVATOR OF FOREST, VIRAJPET DIVISION, VIRAJPET, KODAGU DISTRICT-571 201.

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THE DEPUTY COMMISSIONER, MADIKERI, KODAGU DISTRICT-571 201.

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…RESPONDENTS (COMMON)

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[BY SRI. SHIVAPRABHU HIREMATH, AGA FOR R1 TO R3 (PH)]

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W.P.NO.42053/2015 IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE OPINION OF THE R-3 EXPRESSED IN HIS COMMUNICATION DATED 19.1.2012 VIDE ANNEXURE-A TO THE EXTENT IT RELATES TO OPINION STATING THAT THE PETITIONER HAS NO RIGHT OVER THE TREES HOLDING IT AS ILLEGAL; DECLARE THAT THE R1 AND R2 ARE NOT ENTITLED TO INVOKE THE PROVISION OF RULE 153 (i)(a) OF KARNATAKA FOREST MANUAL AND DEDUCT 10% OF THE SALE PROCEEDS UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE RESPONDENTS CONCERNED ARE LIABLE TO REFUND THE ENTIRE BALANCE AMOUNT UNPAID WITHOUT CAUSING ANY DEDUCTION; III) DIRECT THE R-1 AND R-2 TO CAUSE REFUND OF THE ENTIRE UNPAID MONEY TOWARDS THE SALE PROCEEDS OF THE TREES AMOUNTING TO RS.4,61,42,379/WITHOUT CAUSING ANY DEDUCTION WITH INTEREST AT THE RATE OF 12% P.A. BY WAY OF DAMAGES FROM THE DATE OF AUCTION TILL THE DATE OF PAYMENT OF THE SAID AMOUNT TO SECURE ENDS OF JUSTICE.

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W.P.NO.42054/2015 IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE OPINION OF THE R-3 EXPRESSED IN HIS COMMUNICATION DATED 19.1.2012 VIDE ANNEXURE-A TO THE EXTENT IT RELATES TO OPINION STATING THAT THE PETITIONER HAS NO RIGHT OVER THE TREES HOLDING IT AS ILLEGAL; DECLARE THAT THE R1 AND R2 ARE NOT ENTITLED TO INVOKE THE PROVISION OF RULE 153 (i)(a) OF KARNATAKA FOREST MANUAL AND DEDUCT 10% OF THE SALE PROCEEDS UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE RESPONDENTS CONCERNED ARE LIABLE TO REFUND THE ENTIRE BALANCE AMOUNT UNPAID WITHOUT CAUSING ANY DEDUCTION; III) DIRECT THE R-1 AND R-2 TO CAUSE THE REFUND OF THE ENTIRE UNPAID MONEY TOWARDS THE SALE PROCEEDS OF THE TREES AMOUNTING TO RS.1,80,11,600/WITHOUT CAUSING ANY DEDUCTION WITH INTEREST AT THE RATE OF 12% P.A. BY WAY OF DAMAGES FROM THE DATE OF AUCTION TILL THE DATE OF PAYMENT OF THE SAID AMOUNT TO SECURE ENDS OF JUSTICE.

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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN B-GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In these writ petitions following reliefs are sought:

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A. In W.P. no.42053/2015:

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i) Issue appropriate writ or order or direction in the nature of certiorari quashing the opinion of the 3^rd respondent expressed in his communication bearing no.Vana/93/2011-12 dated 19.01.2012, a copy of which is produced at Annexure-A, to the extent it relates to opinion stating that the petitioner has no right over the trees holding it as illegal.

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ii) Issue appropriate writ or order or direction in the nature of mandamus declaring that the respondent Nos.1 and 2 are not entitled to invoke the provision of Rule 153 (i)(a) of Karnataka Forest Manual and deduct 10% of the sale proceeds under the facts and circumstances of the case and the respondents concerned are liable to be refund the entire balance amount unpaid without causing any deduction;

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iii) Issue appropriate writ or order or direction in the nature of mandamus directing the Respondent nos.1 and 2 to cause refund of the entire unpaid money towards the sale proceeds of the trees amounting to Rs.4,61,42,379/- without causing any deduction with interest at the rate of 12% p.a. by way of damages from the date of auction till the date of payment of the said amount to secure ends of justice;

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iv) Issue such other writ or order or direction that this Hon'ble Court may deem fit under the facts and circumstances of the case including the cost of this writ petition to secure the ends of justice.

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(v) Issue appropriate writ or order or direction in the nature of certiorari and quashing the official Memorandums/orders issued by the 2^nd respondent vide No.DCF.Virpete/Administration/ Viva/22/201011 dated 16.03.2012, 28.11.2013, 23.05.2013,

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12.04.2013, 12.04.2013, 03.01.2014, 26.03.2014, 25.12.2015, 22.05.2014, 30.07.2014, 04.06.2014 copies of which are produced at ANNEXURE-C1, C2, C3, C4, C5, C6, C7, C8, C9, C10 & C11 respectively to the extent he denies the petitioner's payment of 55% of the Total sale proceeds received from the Sale of Timber Logs in the interest of justice and equity.

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B. In W.P. no.42054/2015:

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i) Issue appropriate writ or order or direction in the nature of certiorari quashing the opinion of the 3^rd respondent expressed in his communication bearing no.Vana/92/2011-12 dated 19.01.2012, a copy of which is produced at Annexure-A to the extent it relates to opinion stating that the petitioner has no right over the trees holding it as illegal.

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ii) Issue appropriate writ or order or direction in the nature of mandamus declaring that the respondent No.1 and 2 are not entitled to invoke the provision of Rule 153 (i)(a) of Karnataka Forest Manual and deduct 10% of sale proceeds under the facts and circumstances of the case and the respondents concerned are liable to refund the entire balance amount unpaid without causing any deduction;

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iii) Issue appropriate writ or order or direction in the nature of mandamus directing the Respondent nos.1 and 2 to cause refund of the entire unpaid money towards the sale proceeds of the trees amounting to Rs.1,80,11,600/- without causing any deduction with interest at the rate of 12% p.a. by way of damages from the date of auction till the date of payment of the said amount to secure ends of justice;

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2. Since both writ petitions are substantially on similar

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facts and contentions and connected, they are disposed of by

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common order, but by referring to specific facts only in W.P.no.42053/2015, to avoid repetition.

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Sri Vikram Huilgol, learned Senior counsel appearing for Sri. Arnav A Bagalwadi, advocate for petitioner submitted that land bearing Sy.no.222/2 and 222/15 of Chennyan Kote village Virajpet Taluk, Kodagu, was a alienated bane land belonging to petitioner, wherein alienation ( paradeena) was as early as on 1886. It was submitted that in view of alienation, from such date, all trees grown on said lands belonged to petitioner. It was submitted that said lands were assessed for land revenue during year 1963. Until then, they were known as bane lands, and lost their original character after alienation or ' paradeena', as held by Full Bench of this Court in case of Chekkera Karyappa Poovaiah Vs. State of Karnataka¹ .

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It was contended that in terms of law laid down by

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Division Bench in EC White Vs. State of Karnataka² , trees grown on said lands vested with owner/holder of land after they

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1 ILR 1993 Kar . 2959

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2 1979 (2) KLJ 233

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became paradeena lands and State had no claim over such trees.

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It was submitted that petitioner had also grown

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trees on said lands from time to time. During year 2011, petitioner intended to cut and remove certain matured trees to regulate shade in coffee estate. Therefore, he filed application on 21.01.2011 before respondent no.2 seeking permission to cut and remove matured trees. Upon receipt of application, respondent no.2 referred matter to respondent no.3 for opinion.

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By order dated 19.01.2012, respondent no.3 stated that though petitioner was owner of alienated lands, he had no right over trees. Since said order was contrary to law declared in White 's case (supra), petitioner had questioned said order in W.P.no.12784/2013 before this Court.

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That apart, petitioner was granted permission to cut and remove trees in his coffee estate i.e. 274 trees of different species and 383 beete trees, under order dated 15.05.2012. Insofar as beete trees, petitioner was required to transport cut trees to government depot at Titimathi, Virajpet Taluk.

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Enraged by petitioner filing writ petition,

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respondents sought to arm twist petitioner by obstructing him from dealing with already cut trees other than beete. As value of timber would be lost if exposed to elements of nature, petitioner withdrew said writ petition and pursued application for permission before respondents no.2 and 3. In fact, all trees were cut and transported to Titimathi Timber depot for sale, where they were auctioned realizing sum of Rs.8,21,61,930/-.

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It was submitted that Rule 153 of Karnataka Forest Manual provided for constitution of Committee to go into grievances regarding classification of tree or timber for payment of 50% of provisional value to concerned owner of tree subject to condition of forfeiture of EMD amount paid along with application, in case, appeal were to be dismissed. Insofar as rosewood logs, owner of timber was provided with right to offer final bid.

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It was submitted that though, petitioner was not paid any amount initially, he was later paid 45% of sale proceeds after illegally deducting 10% of sale proceeds towards supervision, 12% towards service tax, 2% towards education

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cess and 1% towards higher education cess. It was contended that provisions of Rule 153(i)(a)(b)(c) of KFM were not applicable as there was no supervision by respondents and entire felling, conversion, dragging, loading, transportation, unloading at depot and lotting was done by petitioner. He had also borne municipal levies, octroi etc. It was further contended that service tax etc., were usually collected from auction purchaser as per practice and respondents were not justified in deducting service tax from amount payable to owner.

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It was submitted that for auctioning, respondents were not entitled for deduction of 10% of sale proceeds under guise of supervision charges. Therefore, petitioner was entitled for entire sale proceeds of Rs.8,12,61,930/-. But petitioner was paid Rs.3,60,19,551/-, leaving balance of Rs.4,61,42,379/-.

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It was submitted that eleven bills as per Annexures - C1 to C11 provide particulars of illegal deduction as above and payment of remaining 45% to petitioner. As lands were paradeena lands, petitioner had right not only over land, but also over trees grown on it and therefore, withholding of Rs.4,61,42,379/- was without authority of law. Even deduction

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of 10% of sale value without actually carrying out any supervisory work was also without authority of law.

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Referring to communication by Principal Secretary, Department of Forest addressed to Principal Chief Conservator of Forests dated 10.06.2011, produced as Annexure - R6, it was submitted that government had clarified legal right of landholders in respect of bane and alienated bane lands. In column nos.6 and 7, it was specifically clarified that ownership of trees naturally growing in land vested with government, while trees planted would vest with holder in case of alienated bane lands. But, opinion of respondent no.3 impugned herein contradicted above clarification and therefore matter required to be remitted back to respondents no.2 and 3 for reconsideration in light of clarification.

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In support of his submission, he relied upon

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following decisions:

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(i) Y.N. Ragunath Vs. Chief Conservator of Forests (W.P.no.4974/2014 disposed of on 15.03.2015), to contend that under similar circumstances, where respondents had withheld amount received in public auction of rosewood logs from trees standing on paradeena land, learned Single Judge of this Court had directed payment of 90% of sale proceeds with interest at 9% per annum, from date of auction by taking note of fact that trees had grown after date of paradeena.

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ii) It was submitted that in W.A.no.1736/2015 c/w W.A.no.1611/2015 against above decision, Division Bench dismissed State Appeal and allowed holder's appeal by enhancing rate of interest to 12% per annum. And that State Appeal against said decision was dismissed by Hon'ble Supreme Court.

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iii) Sri. Ramanathan Vs. The State of Karnataka (W.P.no.16289/2022 D.D. on 10.03.2023) , disposed of relying upon decision in Y.N. Ragunath 's case (supra), by issuing directions to respondents for refund of amount received by sale of timber trees in auction.

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On above submissions, learned Senior Counsel sought for allowing writ petitions.

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On other hand, Sri Shivaprabhu S. Hiremath, learned AGA for respondents no.1 to 3 opposed writ petition. It was submitted that even in case of paradeena bane lands, holder of land would not get any right in respect of trees grown thereon, unless such right was redeemed by payment of seinorage charges. Referring to clarification at column no.5 in Annexure-R6, it was submitted that only right assigned to holder of land was right to cultivate and as clarified in column no.6, ownership of trees would vest with government.

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It was submitted that in case of alienated bane land, it was specifically clarified in column no.7 that only planted trees such as Silver Oak, Erythrina, etc., would vest

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with holder. And since petitioner's claim was not in respect of Silver Oak or Erythrina trees etc., petitioner was not entitled to any relief. It was further submitted that records at AnnexureR5 would clearly establish that right in respect of trees was not redeemed after alienation. Therefore, petitioner could not lay any claim in respect of same.

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It was further submitted that ratio in Y.N. Ragunath 's case (supra) was distinguished by Division Bench of this Court in The Deputy Conservator of Forests, Madikeri Division, & Others Vs. Sri Udaya Eshwaran (W.A.no.6643/2017 D.D. on 20.12.2018) , wherein direction was issued for determination of ownership of trees/timber before holder could lay claim in respect of trees on alienated bane lands. It was further submitted that petitioner's claim would depend on whether petitioner had redeemed his right after date of alienation of bane lands.

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In reply, learned Senior counsel for petitioner submitted that in view of clarification given by Government at Annexure-R6, matter could be remitted back to respondent no.2 for consideration afresh. It was submitted that insofar as right of occupant, definition of 'occupant' in Section 2(20) of

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Karnataka Land Revenue Act, 1964 (for short ' KLR Act ') as amended by Act no.11/2013 with effect from 01.02.2013 read with Section 75 of KLR Act, would enure to benefit of petitioner, which could also be taken into account by respondents at time of re-consideration. It was further submitted that in R.P.no.20/2019 , review of decision in Udaya Eshwaran's case (supra) was sought for and interim order of stay was granted on 10.11.2021 and therefore, ratio in said decision could not be relied upon. In any case, ultimate direction issued in said decision was for determination of ownership right of holder in respect of trees/timber grown on alienated bane lands.

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Heard learned counsel, perused writ petition records.

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From above submission, main dispute is about entitlement of holder of alienated bane land to value of timber received on auction of trees cut from alienated bane lands. While petitioner relies upon clarification issued by Government as per Annexure-R6, ratio of decision in Y.N.Ragunath 's case (supra) and provisions of KLR Act to justify their claim; respondents also referred to clarifications in Annexure-R6 and

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of failure of petitioner to redeem right in respect of trees growing on alienated bane lands after date of alienation as indicated in Annexure-R5.

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On perusal of impugned order at Annexure-A, it is seen that respondent no.3 - Deputy Commissioner has merely stated that name of petitioner - applicant was found in Column no.9 of Record of Rights and therefore, he had no right over trees grown on said lands. Same is issued on 19.01.2012, which is before amendment to definition of 'occupant' in Section 2(20) of KLR Act, whereunder words ' holder of privileged and unprivileged jamabane and umbli lands in Coorg District ' were included in definition of 'occupant' and effect of said amendment to interpretation of right to trees under Section 75 of KLR Act would require to be re-considered. Therefore, prima facie impugned order at Annexure-A would be unsustainable. Same would require reconsideration.

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In so far as W.P.no.42053/2015, respondents have contended that lands in respect of which petitioner was claiming rights in said writ petition were not alienated bane lands apart from other contentions urged in connected matter.

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Therefore, at time of reconsideration, respondents would be required to give finding on said aspect as well.

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For aforesaid reasons, instead of delving into factual dispute whether lands in question were paradeena lands and whether they were redeemed or unredeemed and effect of failure to redeem on right of holder in respect of trees grown on such lands, it would be appropriate to quash Annexure-A and remit matter back to respondents for fresh consideration in accordance with law.

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Consequently, Writ petitions are disposed of. (i) Impugned orders at Annexure-A in both writ petitions are quashed without prejudice to respective contentions, with direction to respondents no.2 and 3 to reconsider by giving specific findings about whether petitioner's lands in question are :

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a) alienated bane lands;

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b) whether they were redeemed or unredeemed and effect thereof on right of petitioners to trees/timber grown on such lands in light of amended definition of 'occupant' and Section 75 of KLR Act and clarifications given by

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Principal Secretary, Department of Forests to Principal Chief Conservator of Forests dated 10.06.2011, produced as Annexure - R6.

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(ii) Respondents shall also determine

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date/year of alienation of bane lands and age of trees at time of such reconsideration.

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(iii) Time for reconsideration shall be four months from date of receipt of certified copy of order.

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Sd/JUDGE

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psg

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU [MRS UMADEVI NAMBIAR VS. THE CONSERVATOR OF FOREST AND OTHERS]

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RVHJ

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14.06.2023 (VIDEO CONFERENCING / PHYSICAL HEARING)

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ORDER ON IA.2/2023

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Heard.

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IA.2/2023 is filed for modification / clarification. It is submitted that absence of a specific observation regarding petitioner's claim for release of amount realised from sale of timber, respondents would not release amount.

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On perusal of order, it is seen that direction has been issued to consider petitioner's representation in light of observations. When representation filed by petitioner is for release of amount realized on sale of timber, it would be needless to add that in case finding by respondents are in favour of petitioners, they would obliged to release amount, within two weeks along with applicable interest. Accordingly, IA.2/2023 is disposed of.

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Sd/JUDGE

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Mkm List No.: 1 Sl No.: 16

Mrs Umadevi Nambiar v. the Conservator of Forest

Case brief

What is this about?

What did the court decide?

Mrs Umadevi Nambiar v. the Conservator of Forest

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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