- Bookmark
- Share
- CaseIQ
Babajan H. v. Dy. Conservator Of Forests, Bhadravathi And Anr.
Factual and Procedural Background
The petitioner is a forest contractor who, by a registered deed executed in 1973, claims to have purchased "Malki" in Sy. No. 60 of Kadekal village. The land comprised 32 blocks and the alleged "Malki" was described as the right to cut and remove firewood and bamboo in those 32 blocks. On applying for permission to cut and remove the produce, the Forest Department issued "Maafi Passes" authorizing removal after the petitioner cut and converted bamboo into chips. The Forest Department demanded seigniorage charges; the petitioner paid these charges but contends the demand and collection were illegal on the ground that the land was "Hiduvali" and that he had paid consideration to the Hidavalidar in 1973.
The petitioner seeks a refund of seigniorage charges claimed to have been collected illegally (specifically Rs. 24,661-07) and further prays for permission to remove firewood, bamboo and bamboo chips without payment of seigniorage charges. The respondents did not file a formal statement of objections; however, counsel for the State (HCGP) opposed the claim on the basis that the land had been granted to 32 Harijans under the Darkhast Rules and that grantees had only cultivation rights, not rights to trees. Two central points for consideration were identified by the Court and recorded in the opinion.
Legal Issues Presented
- What is the nature of the land and whether the petitioner can claim rights to the trees and bamboos without payment of seigniorage charges on the strength of the agreement between him and his vendors?
- Whether the petitioner, having voluntarily made payments and enjoyed the benefits of forest produce, can be permitted to claim refund on the allegation that the payment was illegal?
Arguments of the Parties
Petitioner's Arguments (as advanced by Mr. M.P. Eshwarappa)
- The petitioner is not liable to pay any amount to the State for the forest produce.
- Reliance on Sections 75 and 79 of the Land Revenue Act to support entitlement to tree rights or exemption from payment.
- Reliance on three judicial precedents of the Karnataka High Court (identified in the petition as 1975 (1) Kar. L.J p.372; 1983 (2) Kar. L.J Short notes item 69; and a 1972 (2) Kar. L.J p.205 entry) to support his legal position.
- Relied upon a departmental letter dated 13-11-1973 (Annexure-D) suggesting that tree growth on lands held as private property prior to 1 April 1964 were deemed to be redeemed in favour of occupants, contending this supports non-liability to pay value for trees.
Respondents' Arguments (as presented by Sri Abdul Khader, HCGP)
- The land in Sy. No. 60 was not Hiduvali land but had been granted to 32 Harijans under the Darkhast Rules; it was Gopal land divided and 82 acres had been granted to landless Harijans.
- The grantees/allottees had only a right of cultivation (a limited, resumable right) and not proprietary rights in trees; consequently they could not transfer rights they did not possess to the petitioner.
- The petitioner had voluntarily paid the seigniorage charges and obtained Maafi Passes; because payment was voluntary and the petitioner enjoyed the benefit, he could not now claim refund as an instance of illegal collection or unjust enrichment.
- Support for these contentions was placed on government records made available to the Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Manchegowda v. State (ILR 1984 KAR 1) | Principle that lands granted under the relevant scheme were not proprietary in the sense of acquisition/holding under Article 19(1)(f); grants conferred possession and enjoyment subject to prohibition on transfer and other conditions. | The Court relied on this decision to conclude that grantees under the Darkhast Rules did not obtain proprietary rights, transferees (such as the petitioner) cannot be bona fide transferees for value, and therefore cannot assert equitable rights in the land or trees; this undermined petitioner's claim to "Malki" rights. |
| K.M. Basheer & Co. v. State of Mysore & Others (1975 (1) Kar. L.J 372) | Held petitioners were owners in lawful possession, paying assessment to State Government and were treated as "occupants" under the Land Revenue Act. | The Court distinguished this case, stating it had no application here because the allottees in the present case were not "occupants" in terms of the Act. |
| State of Karnataka v. T.V. Ramaraju Naidu (1975 (2) Kar. L.J 205) | Recognition that the State continues to be proprietor of soil and trees on certain lands (bane land), and that a limited right to cut wood for household use may be recognised; Government may realise value or seize timber if disposed in breach. | The Court observed the decision recognised State proprietorship of soil and trees; it held the decision had no direct relevance to the petitioner's case but supported the position that the State retained property rights in trees. |
| Assainar v. State of Karnataka (1983 (2) Kar. L.J Shortnotes item 69) | Considered continuity of certain local rules (Coorg rules) after the coming into force of the Land Revenue Act. | The Court stated this decision was of no assistance to the petitioner on the facts of the case. |
Court's Reasoning and Analysis
The Court analyzed documentary records and the parties' admissions. The material shows Sy. No. 60 was Gopal land of 387.36 acres, out of which 82 acres were granted to landless Harijans under the Darkhast Rules. The petitioner had admitted these facts in representations to forest authorities; the petitioner's Annexure-A supported the grant history.
Relying on Manchegowda v. State (ILR 1984 KAR 1), the Court reiterated the principle that lands granted under the relevant scheme did not confer proprietary rights in the sense of acquisition or protection under Article 19(1)(f), and that prohibition on transfer was an essential condition of such grants. Transferees who took such lands in contravention of the grant conditions could not claim a defeasible title protected in law or equity. Applying that principle, the Court held that the petitioner, as a transferee from allottees who themselves had only limited rights, could not be treated as a bona fide transferee for value entitled to equitable protection or proprietary rights in trees.
The Court then examined the applicability of provisions of the Land Revenue Act relied upon by the petitioner. Section 75 (which pertains to rights of an "occupant") was considered in light of the statutory definition of "occupant." The Court found that allottees under the Darkhast Rules were not occupants for the purposes of Section 75. The opinion states that, on the facts, Section 78 would be applicable and the petitioner would be liable to pay the value of trees, because the land continued to be the property of the Government.
Section 79 (dealing with cases where rights of trees are reserved) was addressed: the Court held that vendors (the allottees) had no right in the trees and therefore Section 79 had no application to the facts of this case.
The Court considered the precedents cited by petitioner and either distinguished them (K.M. Basheer & Co.) or held they were not helpful (State v. Ramaraju Naidu, Assainar). The departmental letter dated 13-11-1973 (Annexure-D), relied on by the petitioner, was considered and rejected as supporting his position because the land was not private property of the allottees nor were they occupants; the letter's later portion was not applicable as the grants were made in 1961-1963 (prior to the Land Revenue Act, 1964), and there was no material to show value had been collected from assignees prior to issue of Sagavali Chit.
The Court noted that the petitioner appears to have understood his liability because he requested a Maafi Pass after depositing the amount, indicating the dispute was raised belatedly and was an afterthought. The Court indicated it was inclined to allow an interlocutory application for amendment (I.A. I) but proceeded to reject the substantive contention elaborated by that amendment as an elaboration of the second prayer in the writ petition.
Holding and Implications
Holding: The writ petition is dismissed; the rule is discharged and no costs are awarded.
Implications for the parties: Based on the Court's analysis, the petitioner is not entitled to be treated as an occupant or as having acquired proprietary rights in the trees and bamboo on the land by virtue of his agreement with the vendors. The Court held that the State retained proprietorship of the land and trees; consequently, the petitioner was liable for the value of trees and cannot claim a refund of the seigniorage charges he paid. The Court allowed an amendment application procedurally but rejected the substantive relief sought by that amendment. No broader precedent beyond the application of existing authorities was announced by the Court in this opinion.
1. Petitioner is a Forest Contractor. By registered deed executed in 1973, petitioner claims to have purchased ‘Malki’ in Sy. No. 60 of Kadekal village. The land consisted of 32 Blocks and the ‘Malki’ was the right to cut and remove the firewood and bamboo trees in all the 32 Blocks. On application for permission to cut and remove the ‘Malki’ the Authorities in the Forest Department issued “Maafi Passes” enabling the petitioner to cut and remove the firewood and Bamboo trees. The petitioner was to cut the Bamboo tree and convert them as ‘Chips’ before they are removed from the Forest area. It appears that the authorities in the forest Department have been demanding seigniorage charges; petitioner has paid the seigniorage charges; he contends that the demand and collection of these charges was illegal, as the land was a ‘Hiduvali’ land and he had paid consideration to the Hidavalidar in 1973. The prayer of the petitioner is that Seigniorage charges collected form him should be refunded, as it is an illegal collection. Petitioner claims refund of Rs. 24,661-07 and also prays that he may be permitted to remove the firewood. Bamboo and Bamboo chips without payment of seigniorage charges. This in effect is the relief sought, as detailed in I.A for amendment.
2. The respondents have not filed statement of objections; but Sri Abdul Khader, HCGP, contended that the land is not a Hiduvali land; it was granted to 32 Harijans under Darkhast Rules. Since the land had to be made fit for cultivation, petitioner was permitted to clear the forest produce on his paying seigniorage charges. Petitioner had voluntarily paid the amount demanded and had obtained Maafi Passes. The grantees or allottees had only right of cultivation and not to the trees on the land. Hence irrespective of the agreement between the allotees and the petitioner, the allotees not being owners could not transfer rights which did not exist in them. Their limited right of cultivation on the land, which is resumable by the Government, at any time does not create any right in them, much less, in the petitioner. He maintained that this is not a case of illegal collection or unjust enrichment; petitioner cannot claim refund of the amount, voluntarily paid by him. The Government Pleader has placed reliance on the records, which are made available to the Court. The points that arise for consideration are:
(i) What is the nature of the land and whether the petitioner can claim right to the trees and Bamboos without payment of seigniorage charges, on the strength of agreement between him and his Vendors?
(ii) Whether petitioner, having voluntarily made payments and enjoyed the benefits of forest produce, can be permitted to claim refund, on the allegation that it is an illegal payment?
3. Mr. M.P Eshwarappa, learned counsel for the petitioner, vehemently contended that the petitioner is not liable to pay any amount to the State; he relied on Sections 75 and 79 of the Land Revenue Act and the following rulings of this Court:
(i) 1975 (1) Kar. L.J page 372.
(ii) 1983 (2) Kar. L.J Short notes item 69; and
(iii) 1972 (2) Kar. L.J page 205.
4. Records reveal that Sy. No. 60 of Kadekal village has been granted under the Darkhast Rules. It was a Gopal land measuring 387.36 acres. Out of this, an extent of 82 acres was granted to landless Harijans under Darkhast Rules; this fact is admitted by the petitioner in his representations dated 26-4-1976 addressed to D.F.O Bhadravati and one dated 12th Jan. 1983 addressed to Dy. Conservator of Forests, Bhadravati. This fact gets support from Annexure-A filed by petitioner. The rights of such allottee stands concluded by decision of Supreme Court in Manchegowda v. State (ILR 1984 KAR 1), wherein it is observed:
“17…………….The granted lands were not in the nature of properties acquired and held by the grantee in the sense of acquisition, or holding the property within the meaning of Art. 19(1)(f) of the Constitution. It was the case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition to transfer of such granted lands for the specified period was an essential term or condition on the basis of which grants made……..”
5. If the petitioner has paid consideration and has obtained Malki rights, as claimed by him, he gets no right in the eye of law nor can be plead equity. In the above ruling it was pointed out:
“15. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of the grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred, is, in fact being defeated and they are being dispossessed of such lands from which they were in law liable for to be dispossessed by process of law.”
“18. The transferees of the granted land from the original grantees acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be a bonafide transferees for value……..”
6. In terms of the above observations, petitioner cannot be a bonafide transferee for value and he cannot plead equity. This being the nature of land, petitioner cannot assert that he has acquired “Malki” rights. In view of this factual background petitioner cannot get any assistance from Section 75 of the Land Revenue Act, which pertains to right of occupant of the land. The word occupant is defined thus:
“2(20) “Occupant” means a holder in actual possession of unalienated land other than the tenant:
Provided that where the holder in actual possession is a tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant;
(Explanation: A ryotwari pattadar in the Madras Area and Bellary District, a pattadar or Shikmidar in the Hyderabad Area and a holder or landholder in the Coorg District shall be deemed to be an occupant of such land for purposes of this Act.)”
7. The allotees, under the Darkhast rules were not holding the land under any right of their own and as such they were not occupants, for purposes of Section 75, Land Revenue Act. On the facts of this case. Sec. 78 would be applicable and petitioner would be liable to pay the value of trees, as the land continues to be the property of the Government. Sec 79 of the Land Revenue Act deals with cases where rights or trees are reserved. The vendors of the petitioner being allotees under the Darkhast Rules, they have no right in the trees and they cannot claim any privilege, hence Sec. 79 has no application to the facts of this case.
8. In the case reported in 1975 (1) Kar. L.J 372 (K.M Basheer & Co. v. State Of Mysore & Others), petitioners therein were owners, who were in lawful possession, paying assessment to State Government and were held as ‘Occupants’ under the Act. The said decision has no application to the facts of the case as the allotees are not occupants.
9. The other decision cited by Sri Eshwarappa, namely, State of Karnataka v. T.V Ramaraju Naidu (1975 (2) Kar. L.J 205) has no relevance. There the Court was considering the rights of a Bane Holder in Coorg. It was, however, held that the State continues to be the proprietor of soil and trees on the bane land. In recognising the limited right of Baneholder to cut or fell wood the Court observed:
“7……………But he will have no right to cut or fell wood or timber for sale or barter or for the use of any one but his own house-hold and servants. In case any wood or timber is disposed of in breach of this rule, the Government will be at liberty either to realise the full estimated value from the bane holder or to seize and detain the timber and sell it by auction.”
10. In Assainar v. State of Karnataka (1983 (2) Kar. L.J Shortnotes item 69) the Court was required to consider the continuity of Rules in Coorg after the coming into force of Land Revenue Act. The said decision is of no assistance. In this view of the matter, the Department was justified in demanding the amount and amount so paid by the petitioner is liable to be refunded.
11. Mr. Eshwarappa relied upon the letter dated 13-11-1973 (Annexure-D) written by the Secretary in the Agriculture and Forest Department to the Chief Conservator of Forests. In spirit and intent it connotes an idea that the tree growth on lands, held as private property by individuals prior to 1st April 1964 are deemed to have been redeemed in favour of Occupant and the question of collecting the value does not arise. As held above, the land in question is not a private property of allotees and they are not occupants, therefore, the argument constructed on this letter has to be rejected. The lands are granted during 1961-1962 and 1962-1963; therefore, it being prior to the coming into force of Karnataka Land Revenue Act, 1964, the latter part of the letter has no application to the facts of the case. Even otherwise there is no material to hold that the value was collected from the assignees before the issue of Sagavali Chit. In the view, I have taken, petitioner was liable to pay the amount; and it appears to be so understood by the petitioner himself, as and when he requested for Mafi Pass after depositing the amount. The dispute now raised and point now canvassed is an afterthought. I am inclined to allow I.A.I for amendment. The contention raised in this I.A is an elaboration of 2nd prayer in the writ petition, which is considered above and is rejected.
12. For the aforesaid reasons, this petition has to fail.
13. Rule discharged; Writ petition dismissed. No costs.
Alert