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2018 Supreme(Kar) 1253
IN THE HIGH COURT OF KARNATAKA
L. NARAYANA SWAMY, P.B. BAJANTHRI, JJ.
The Deputy Conservator Of Forests Madikeri Division Kodagu And Ors. - Appellant
Versus
Sri Udaya Eshwaran — Respondent
Writ Appeal No. 6643 of 2017(GM-For)
Decided on : 20-12-2018
For the Appellant :Sri Shivaprabhu S Hiremath, Addl. Govt. Advocate
For the Respondent:Sri A.K. Subbaiah and Smt. Leela P. Devadiga, Advocates
Headnote:
Karnataka Land Revenue Act, 1964 - Section 70- Land Revenue - Respondent cut trees and transported them to Government Timber Depot - Appellants to consider respondent's application keeping in view existing law and earlier orders passed by Deputy Commissioner - Appellant granted permission to cut trees on Respondent cut trees and transported them to the Government Timber Depot which was auctioned auction consideration - As appellants did not released auction amount he had filed a petition before this Court which was disposed Single Judge allowed petition while holding that petitioner is entitled to auctioned amount along with interest –Held, Respondent cut trees and transported them to Government Timber Depot Government is owner of tree(timber) which were grown - Therefore without going into merits of case is appropriate to set-aside order of learned Single Judge and direct appellants to give ample opportunity of written and oral hearing to respondent by furnishing relevant statutory provision to contend that owner of tree would be Government and not respondent appellants are hereby directed to issue a detailed show-cause notice to respondent while highlighting relevant statutory provision read with Judicial pronouncement to enable the respondent to submit his explanation - Such notice shall be served on respondent within a period of eight weeks from of receipt of certified copy of this order shall be passed within eight weeks from receipt of respondent's explanation and oral hearing and communicate order to respondent at earliest not beyond ten weeks from receipt of explanation read with oral hearing of respondent to show cause notice - Respondent is entitled to cost due to misleading respondent in permitting him to cut 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 matter – Order accordingly
JUDGMENT :
P.B. Bajanthri, J.
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.
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 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 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 v. 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 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 v. Robert D'souza allowed the SLP (Civil) No.4262/1996 and held that in such matters, the Court belo
