AI Structured Summary
Not yet generated for this judgment
Judgment
A.S. Bopanna, J.—The petitioners are before this Court assailing the order dated 23.09.2011 passed by the third respondent in Appeal No. 09/2009-10 at Annexure-P to the petitions. The petitioners are also seeking for a direction to the respondents to consider the application filed by the petitioners dated 21.02.2007 as at Annexure-E to the petitions. The father of the first petitioner was granted land measuring 4 acres in Sy. No. 290 (Old Sy. No. 95/P6) situate at Bintravalli Village, Kasaba Hobli, Koppa Taluk, Chikkamagalur District. The first petitioner had made an application dated 21.02.2007 (Annexure-E) seeking felling permission in respect of 14 jungle wood trees stated to have been grown by the petitioner in the land which had been granted to him. At the first instance, the Assistant Commissioner, on considering the application of the petitioner for the purpose of opinion from the revenue department has arrived at the conclusion that the tree growth belongs to the petitioner, since at the time of grant there was no tree growth and as such there can be no objection for permitting the petitioner to cut and remove the said jungle wood trees. The Assistant Conservator of Forest is also stated to have arrived at the conclusion that the petitioner is entitled to cut and remove 13 trees from the said land, since according to him, one of tree could not have been allowed to be cut.
Despite such opinion, since the application of the first petitioner had not been considered, the petitioner was before this Court in W.P. No. 5539/2008. This Court while disposing of the petition on 11.08.2008 had taken note of the submission of the learned Government Advocate that second opinion was required in the said matter and therefore, the action would be taken subsequent thereto. The petition was disposed of with a direction to consider the application in accordance with law. The request of the petitioner was thereafter considered and as per Annexure-K, the earlier opinion of the authorities is stated to have been reiterated, but the order at Annexure-L did not favourably consider the application filed by the petitioner. The petitioner had therefore filed an appeal before the Appellate Authority. Since, there was delay, the same had been rejected. But when the petitioners were before this Court in W.P. No. 34146/2010, this Court by its order dated 02.11.2010 had condoned the delay and directed consideration of the appeal. Subsequent thereto, the appeal No. 9/2009-10 has been considered and the request of the petitioner has been rejected by the order dated 23.09.2011. It is in that circumstance, the petitioners are before this Court.
The respondents have filed their objection statement seeking to justify their action. It is contended that though the reports indicate that there was no tree growth at the time of the grant being made in favour of the petitioner, taking note of the growth of the trees which is sought to be cut and removed by the petitioner, the girth of the trees would indicate that the tree could not have been grown subsequent to the date of the grant in the year 1957. In that circumstance, it is the contention of the respondents that the size of the trees would indicate that it was subsisting even prior to 1956 and in that circumstance, the trees which are sought to be cut by the petitioner is not situate in the land which has been granted to the petitioner. It is in that circumstance, the appeal has been rejected and therefore, the respondents contend that the order is justified.
In the light of the rival contentions, I have perused the petition papers. The sequence of events noticed above would no doubt indicate with regard to the opinion furnished at the first instance by the Revenue Officer as also the Officer of the Forest Department. In that light, what is necessary to be noticed is as to whether the order impugned herein is justified in law and as to whether the necessary particulars which was required to be considered by the Appellate Authority in fact has been adverted to before coming to a conclusion.
From the perusal of the impugned order, it is seen that the basis of the decision is that the trees for which the petitioner is seeking felling permission is not situate in the land belonging to the petitioner keeping in view the size of the trees In fact, to consider the correctness of the said contention, I had required the learned Government Advocate to find out as to whether any sketch had been prepared and whether it is based on which the authority has arrived at such conclusion. A sketch has been made available to this Court. A copy of the same has also been obtained by the petitioner under the Right to Information Act. Therefore, the fact that there is a sketch available on record cannot be in dispute.
From the sketch, it is pointed out that the land bearing Sy. No. 290 which was granted in favour of the petitioner is shown in ''Green'' colour and in addition to the same, the petitioner has also encroached upon an area measuring 1 acre 20 guntas which is shown in ''Red'' colour. It is in that circumstance, pointed out that the petitioner was directed to dig a trench to separate the land which was granted to him and the Government land. If this aspect of the matter is kept in view, since by the said sketch the area which has been granted to the petitioner has been demarcated from the additional area which is said to have been encroached upon by the petitioner, the consideration at this juncture should only be with regard to the trees that are stated to be standing in the area which has been granted to the petitioner in Sy. No. 290 and the tree growth if any situate in the encroached portion in Sy. No. 95 (''Red'' colour area) in any event cannot be taken into consideration.
If this aspect of the matter is kept in view and the impugned order passed by the Appellate Authority (Annexure-P) is perused, it is seen that after taking note of the rival contentions, all that the Appellate Authority has stated is with regard to the normal manner in which a tree would grow and the girth of the tree which would determine the age of the tree. The authority has therefore come to the conclusion that since the girth of the trees which the petitioner has sought to cut and remove is more than the normal growth that would have taken place from the year 1957 onwards, the trees would have to be assumed to have been in existence prior to 1956 and if that aspect is kept in view, the tree is not situate in the land belonging to the petitioner. Such conclusion in my view is only in the nature of assumption and not a determination of fact on a concrete basis. There is no definite finding by the Appellate Authority with regard to the existence or otherwise of the trees in the land belonging to the petitioner and the age of those trees if it is in existence based on the record or spot inspection if any made.
Once the area granted in favour of the petitioner and the encroached area had been demarcated as per the sketch, all that the Appellate Authority was required is to secure appropriate reports as to whether the 13 trees which has been recommended by the Revenue as well as the Forest officials for felling is situate in the area earmarked in ''Green'' colour as the land having been granted in favour of the petitioner. If the said trees are situate in the area which has been earmarked as the land belonging to the petitioner, the consideration of the appeal should have been in that direction to come to a conclusion as to whether the rejection of the application was justified or not. Certainly, in such consideration, if it was found that the 13 trees to which the petitioner seeks felling permission is situate in the area marked as ''Red'' colour in Sy. No. 95, certainly the authority would be justified in rejecting the application. This consideration in fact requires to be made by the Appellate Authority after looking into the sketch prepared and on securing any further reports with regard to the exact location of the trees for the purpose of consideration. Since the consideration has not been made in the said direction, the order dated 23.09.2011 impugned at Annexure-P is not sustainable. The same is accordingly quashed. The Appeal No. 9/2009-10 is restored to the file of the Appellate Authority to reconsider the same in the manner as indicated above and thereafter come to a conclusion in accordance with law. Since, the matter has been pending for quite some time, the petitioner at the first instance shall appear before respondent No. 3-Appellate Authority on 30.01.2014. The Appellate Authority shall thereafter obtain the reports and conclude the proceeding as expeditiously as possible, but not later than three months from the said date.
In terms of the above direction, these petitions stand disposed of.