The deeming clause under the Karnataka Land Revenue Act, 1964 places the burden of proof on the state to establish reserved rights in trees, and permission under the Karnataka Preservation of Trees Act, 1976 is necessary for cutting trees.

Hari Nath Tilhari, J.— By this petition, the Petitioner has sought for the following reliefs:

i) Quash the order dated 14.8.1998 bearing No. FOR:130:96-97 (produced as Annexure-A) issued by the first Respondent and hold that the Petitioners are the absolute owners of the trees except sandal wood situated in survey numbers fully described in the schedule to this petition.

ii) Consequently permit the Petitioners to cut and remove the trees situated in the schedule property without insisting payment of any amount towards the value of the trees and

iii) Pass such other and further orders as deem fit under the circumstances of the case.

2. The Petitioner's case in a nutshell is that the lands had been granted by the State Government to the Petitioner during the year 1928-29. The Petitioner's claim is that he is in possession of the land and is using the same for growing coffee crops. According to the Petitioner's case, trees standing on the coffee land were hindering the growth of the coffee crop by giving excessive shade to the coffee plants. As such, the Petitioner made an application under Sections 74 and 75 of the Karnataka Land Revenue Act, 1964 seeking permission to cut and remove the trees. The Assistant Commissioner and the Tahsildar furnished the report to the Deputy Commissioner stating that the Petitioner is the owner of the land in question. But the Deputy Commissioner opined that the reserve kind of trees belongs to the State Government. The Petitioner's case is that the permission should have been granted to the Petitioner to cut the trees. In the petition no doubt, reference has been made to Sections 74 and 75 of the Karnataka Land Revenue Act.

3. The learned Counsel for the Petitioner contended that in view of law laid down by this Court in Writ Petition No. 36912 of 1997 decided on 9.6.1998 and the judgment of this Court in Writ Petition No. 43003 of 1995, it has been laid down that the burden is on the State to show that reservation of right of trees has been there and it is for the government to prove such reservation that has been made. The Petitioner's Counsel further contended that the State Government has not discharged that burden to show that the trees have been reserved in favour of the government.

4. The learned Government Counsel contended that it has been laid down in the case of J Adiveppa Babappa Hulasera Vs. Divisional Forest Officer, ILR (1989) KAR 1228 that there is no right to seek permission to cut the trees unless the applicant shows that he is the owner of the trees. The learned Government Counsel further contended that here in this case, the Petitioner ought to have been proved that the burden is on him to prove that the trees belong to him.

5. I have applied my mind to the contentions raised by the learned Counsel for the parties. It will be appropriate at this juncture to refer to the following sections of the Karnataka Land Revenue Act, 1964 which deals with the question of ownership of right in the trees. Sections 74, 75 and 76 of the Karnataka Land Revenue Act, 1964 reads as under:

74. Right to trees in village to which survey settlement has not been introduced.-(1) In any village or portions of a village to which survey settlement has not been introduced under this Act or under any of the Act repealed by this Act, the right to all trees, except such as are reserved by the Government under any law for the time being in force, shall be deemed to vest in the occupant, if any, of the land upon which they may be standing except when such trees are the property of the State Government.

75. Right to trees in villages, to which survey settlement has been introduced.- (1) In any village or portions of a village if the original survey settlement has been completed before the commencement of this Act, the right of the State Government to all trees in any land, except trees reserved by the State Government or by any Survey Officer, whether by express order made at or about the time of such settlement or