M.V. SURYANARAYANA RAO S/O LATE M.S. VENKATAGIRYAPPA REP. BY GENERAL POWER OF ATTORNEY HOLDER SHRI GANESH S/O NAGAPPA Vs. DEPUTY COMMISSIONER AND OTHERS

JUDGEMENT

(1.) PETITIONER in this petition has sought for quashing the order dated 28th March 2007 passed by the second respondent - Tree Officer & Deputy Conservator of Forests, vide Annexure A and the order dated 20th September 2008 passed by the fifth respondent - Tree Authority, Shimoga District vide Annexure B. Further, petitioner has sought for a declaration, declaring that the petitioner is not liable to pay any malki value as the same is illegal and arbitrary & unconstitutional and to direct the respondent authorities to release the timbers which were lifted to the forest depot in its entirety to the petitioner.

(2.) THE land in Sy. No. 59 measuring 09 acres situate at Basavanapura, Hosanagar Taluk, Shimoga District was inherited by petitioner after the death of the original grantee, Smt. Sharadamma W/o. Venkatagiriyappa. The said land has been granted to the original grantee by the jurisdictional Officer after collecting an upset price and malki value "of Rs. 74.58 on 30th May 1973 and thereafter issued the Saguvali chit on 8th January 1974. Accordingly, the name of petitioner has been entered in the mutation register and the record of rights and since the date of grant, they have been in peaceful possession and enjoyment of the land in question. The petitioner has filed the application before the second respondent seeking felling permission in respect of 132 standing trees grown on the said land on 24th May 2005. In the light of the application filed by petitioner seeking permission to fell the 132 trees grown on the land referred above, the second respondent directed the Assistant Director of Land Records and the Range Forest Officer to conduct joint survey of the said land and to submit a report. After conducting joint survey, they submitted the report stating that, the land in question has been transferred to the Revenue Department for grant and that on 8th January 1974, saguvali chit has been issued. It is the further case of petitioner that the jurisdictional authority has submitted his opinion on 6th February 2006 dearly stating that, a sum of Rs. 74.58 has been paid towards malki on 30th May 1973 and that, the khatedar has not contravened any conditions of grant. It is further stated in the report that, there is no encroachment of the land and that, the same is in accordance with Haddubasthue as shown in the sketch and accordingly opined that, petitioner was entitled for grant of felling permission. Instead of accepting the report submitted by the Tahsildar and the grounds made out by petitioner for felling permission in respect of 132 trees in the land in question, he being the owner of the property in view of the grant made in favour of the predecessors of the petitioner 2nd succeeded by him, the Tree Officer and the Deputy Conservator of Forests, Shimoga Forest Division without conducting proper enquiry and without verifying the ground reality and the report submitted by the Tahsildar has proceeded to pass a non speaking order on 28th March 2007 vide Annexure A. Assailing the correctness of the order passed by the said authority, petitioner has filed the appeal before the appellate authority as provided under the relevant provisions of the Forest Act. The appellate authority, in turn, by its order dated 20th September 2008 vide Annexure B has allowed the appeal in part and ordered to pay the market value in respect of Beet ((THELAW)) and jungle wood trees. Being aggrieved by that portion of the order passed by the Shimoga District Tree Authority dated 20th September 2008 at Annexures 8 and the order passed by fifth respondent vide Annexure A, petitioner has presented this writ petition seeking appropriate reliefs as stated supra.

(3.) AFTER careful perusal of the order impugned passed by the appellate authority, it is manifest on the face of the said order that, the appellate authority has rightly allowed the appeal but erred in directing the petitioner to pay the market value in so far as beete and jungle wood trees on the ground that, petitioner has failed to pay the malki value at the time of grant. The said view taken by the appellate authority is contrary for the reason that, the jurisdictional revenue authority has certified, recommended and forwarded his opinion stating that, petitioner has not violated any terms and conditions of grant and that, he may be granted the permission for felling tees. The said aspect has been rightly accepted and confirmed by the appellate authority. But, so far as the second direction issued by the appellate authority to collect the malki in respect of the beete and other kind of trees is concerned, in my view the said authority has slipped into an error in observing that, petitioner has to pay the market value in respect of the beete and other kind of trees and after payment of market value, permission may be granted for felling trees on the ground that petitioner has not paid the maiki in respect of beete and other kind of trees. Therefore, so far as the second direction issued by the appellate authority is concerned, the same cannot be sustained for the reason that, except stating that for ail other trees including beete the age is much beyond 45 years and would have qualified as trees only at the time of grant during 1973 and that, these trees have not been assessed and malki not paid. Hence, malki has to be collected at the rate as existed on the day of appeal to the tree authority. The said reasoning given by the appellate authority cannot be sustained until and unless the jurisdictional Officers of the Department have submitted to that effect in the light of the relevant provisions of the Act and Rules. The appellate authority before issuing the said direction, ought to have obtained report from the jurisdictional officer of the Department. This exercise has not been done by the appellate authority nor followed the relevant provisions while passing the order impugned. Therefore, in view of non conduct of proper enquiry in directing the petitioner to pay the market value in respect of beete and other kind of trees at the rate existed as on the date of filing the appeal cannot be sustained and hence, it is liable to be set aside.