K.A. Swami, J.
1. At the stage of preliminary hearing, learned Government Pleader was directed to take notice for respondents. Accordingly, Sri Udaya Shankar, learned Government Pleader has put in appearance for the respondents and has also secured the instructions. As these petitions can be disposed of at this stage, Rule is issued and they are heard for final disposal.
2. In these Writ Petitions under Articles 226 and 227 of the Constitution the petition under have sought for a direction to Respondents 1 and 2 (the Divisional Forest Officer, Belgaum Division, Belgaum and the Range Forest Officer, Golihalli Taluk, Khanapur, respectively) to permit the petitioners to cut and remove the trees standing on the lands granted to them after depositing the market value of the trees as required by Rule 11(4) of the Karnataka Land Grant Rules, 1969 (hereinafter referred to as the 'Land Grant Rules'). They have also sought for a declaration that permission as required under Sub-section (4) of Section 8 of the Karnataka Preservation of Trees Act, 1976 (hereinafter referred to as the 'Trees Act') must be deemed to have been granted to them. They have sought for a further direction to respondents 1 and 2 to restrain them from cutting and removing the trees standing on the lands in question.
3. On 19-8-1978 different bits of land measuring 3 acres 27 guntas, comprised in Sy.No. 257, 3 acres 20 guntas comprised in Sy.No. 197, 3 acres 20 guntas, comprised in Sy.No. 197/1, and on 14-8-1978 an extent of 3 acres 27 guntas comprised in Sy.No. 252 of Golihalli Village, Taluk Khanapur were granted to each of the petitioners in W.P. 5237 to 5240 of 1988 respectively for agricultural purpose under the Karnataka Land Grant Rules, 1969 (hereinafter referred to as the Land Grant Rules). It is also not in dispute that pursuant to the grants, saguvali chits were also issued to them and possession of the respective bits of land was handed over to each of the petitioners.
4. Thereafter, each of the petitioner made an application dated 20-12-1983 as per Annexure-F before the first respondent seeking permission to cut and remove the trees standing on the land granted to them on receiving the market value of the same and also to grant permission to cut and remove the trees. No action was taken on the applications filed by them. Therefore, the petitioners sent reminders on 14-3-1986 as per Annexure-G to the first respondent. They were informed by the communication bearing No. C/3/PLG/GFT/CR/1/ 87-88 dated 26th March, 1988, acknowledging the receipt of the applications dated 14-3-1988, that the R.F.O. Golihalli had been asked to furnish the case papers immediately and that after the receipt of his report the petitioners would be informed about the further action taken in the matter.
5.1. The contention of the petitioners is that as per Sub-rule (3) of Rule 11 of the Land Grant Rules even as substituted by the notification No. RD 45 LGP 83 dated 30th December, 1986 published in the Karnataka Gazette Extraordinary dated 6th January, 1987, the trees were required to be removed by the authorities of the Forest Department within one year from the date of grant of the land; that even if it is presumed that as per the proviso to Sub-rule (3) of Rule 11 of the Land Grant Rules, a further period of one year is extended by the Divisional Forest Officer, that period has also expired long back, therefore as per Sub-rule (4) of Rule 11 of the Land Grant Rules a right is accrued to the petitioners to cut and remove the trees standing on the land granted to them on payment of the market value of the trees. Therefore, respondents 1 and 2 are not justified in not assessing the market value of the trees and collecting the amount from the petitioners and permitting them to cut and remove the trees.
5.2. On the contrary, it is contended by learned Government Pleader that without removing the trees possession of the lands itself should not have been given because Sub-rule 4(a) of Rule 11 of the Land Grant Rules makes it incumbent upon the authorities not to deliver the land until the trees standing on the land, as required by the Land Grant Rules., are removed by the Forest Department irrespective of the fact whether the land granted is not a forest land but it is a revenue waste land.
5.3. Regarding the contention of the petitioners based on Sub-section (4) of Section 8 of the Trees Act it is submitted by learned Government Pleader that until the petitioners get the right to remove the trees, the question of making an application under the 'Trees Act' for permission to cut and remove does not arise because it is the person who is entitled to cut and remove the trees who can alone make an application and not a person who has no right to cut and remove the trees.
6. In the light of the aforesaid contentions, it becomes necessary to determine the scope and ambit of Rule 11 of the Land Grant Rules which deals with 'Disposal of tree growth on lands granted.'
7. Sub-rules 1 to 4(a) of Rule 11 of the Land Grant Rules as stood prior to the notification dated 30th December, 1986 were as follows:
'Disposal of tree growth on lands granted -
(1) The value of all trees standing on the land granted under these Rules shall be assessed by the authorities of 'the Forest Department.
(2) Where the value of trees so assessed is not more than rupees one thousand, the grantee should be given the option of paying that estimated price within a time to be stipulated by the granting authority and the trees sold to him. If he once agrees to pay the value of trees the default should occasion cancellation. If the grantee is not willing to pay the value of trees as assessed by the Forest Department, the trees shall be disposed of by the authorities of the Forest Department, by tender-cum-auction.
(3) Where the value of such trees -
(i) in the districts of Chikmagalur, Hassan, Coorg, Shimoga and South Kanara is not less than rupees two thousand; and
(ii) in other districts, is not less than rupees one thousand, the trees shall be removed by the authorities of the Forest Department within one year from the date of the grant of the land.
Provided that the Divisional Commissioner may, on recommendation of the Divisional Forest Officer having jurisdiction over the area in which such land is situate, extend the period by one more year, and, in exceptional circumstances, by such further period as to coincide with the end of one more working season.
(4) If within the aforesaid period, such trees are not so removed, the trees may be sold to the grantee of the land on payment of the value of such trees as assessed by the authorities of the Forest Department with reference to the prevailing market rate.
(4)(a) Subject to the provisions of Sub-rule (4) in cases where trees standing on the land granted are required by these Rules, to be removed by the authorities of the Forest Department, possession of the land shall not be given until such trees are removed by the authorities of the Forest Department.
Provided that the State Government, may for sufficient cause, extend the aforesaid period.'
By the notification dated 30th December 1986, Sub-rules 2 and 3 except the proviso thereto were substituted by the following sub-rules:
'(2) Where the value of trees so assessed is not more than rupees twenty-five thousand in case of lands granted for the cultivation of plantation crops and is not more than rupees five thousand in case of other lands, the grantee should be given the option of paying that estimated price within a time to be stipulated by the granting authority and the trees sold to him. If he once agrees to pay the value of trees the default should occasion cancellation. If the grantee is not willing to pay the value of trees so assessed by the Forest Department, the trees shall be disposed so by the authorities of the Forest Department by tender-cum-auction sale.
(3) Where the value of trees so assessed is more than Rupees Twenty five thousand in case of land granted for the cultivation of Plantation Crops and is more than Rupees Five thousand in case of other lands and trees shall be removed by authorities of the Forest Department within one year from the date of the grant of land.'
Sub-rule (5) of Rule 11 provides that any fruit-yielding and manual tree standing on the land be granted to the grantee if he so desires on payment of the value of such tree or trees by the grantee as assessed by the authorities of the Forest Department.
8. From the aforesaid Rule 11 it is evident that the grant of land does not carry with it the grant of trees standing thereon. The value of the trees standing on the land granted under the Land Grant Rules shall save to be assessed by the authorities of the Forest Department. It is also further clear from Sub-rules (2), (3) and (4) of Rule 11 of the Land Grant Rules that if the Forest Department is not in a position to cut and remove the trees, the market value of the same has to be assessed and the grantee be asked to pay the market value. If he pays the market value, he will be entitled to cut and remove the trees.
9. The contention of the petitioners that as the trees have not been removed within the period specified in Sub-rules (2) and (3) of Rule 11, Sub-rule (4) of Rule 11 of the Land Grant Rules comes into play and a right accrues to the grantee to seek permission to cut and remove the trees after payment of market value of the trees as assessed by the authorities of the Forest Department cannot be accepted. The grant of land does not cover and does not amount to the grant of ownership of the trees standing on the land granted. The State continues to be the owner of the trees. Of course, Sub-rules (2) and (3) of Rule 11 of the Land Grant Rules prescribe a time limit for cutting and removing the trees standing on the granted land. Sub-rule 4(a) further makes it clear that until the trees are removed, the possession should not be handed over. In view of the specific injunction contained in Sub-rule 4(a) of Rule 11 of the Land Grant Rules not to deliver possession of the land granted in case where trees standing on the land granted are required by the Rules to be removed by the Authorities of the Forest Department, it is not at all open to the granting authority to deliver possession of such land until such trees are removed by the authorities of the Forest Department. If the Forest Department is not in a position to remove the trees within the specified time, the State Government has power to extend the time. In the instant case, there are trees standing on the lands granted which are required to be removed by the authorities of the Forest Department. As such possession of the lands in question should not have been delivered without removing the trees. Therefore, one thing is clear in the instant case that the possession of the lands granted to the petitioners should not have been delivered without removing the trees. Even then, the petitioners do not get a right to cut and remove the trees unless they are sold to them on payment of the value of such trees as assessed by the authorities of the Forest Department with reference to the prevailing market value. Sub-rule (4) of Rule 11 of the Land Grant Rules only comes into operation in case the authorities of the Forest Department are not able to cut and remove the trees as per Sub-rules (2) and (3) of Rule 11 of the Land Grant Rules. That does not mean that the Forest Department will lose their authority to cut and remove the trees after the expiry of the period mentioned in Sub-rules (2) and (3) of Rule 11 of the Land Grant Rules. It is open to them either to cut and remove the trees by themselves or sell the same to the grantees on payment of such value as assessed by them with reference to the prevailing market-rate. No such thing has happened as yet in as much as the market value of the trees has not been assessed and the petitioners have not been asked to pay the same. Of course, Respondents 1 and 2 ought to have taken steps immediately in the matter when the land is granted for agricultural purpose, to cut and remove the trees as otherwise the very object of the grant of land would be defeated and the grantee would be deprived of the right of cultivation of the land.
10. Under these circumstances, the only direction that can be issued to the authorities of the Forest Department, namely, respondents 1 and 2, either to cut and remove the trees standing on the land granted to the petitioners within a specified period or to assess the value of the trees with reference to the prevailing market rate and on payment of such amount by the grantees, permit them to cut and remove the trees.
11. The contention of the petitioners that the application Annexure-F is also an application under Sub-section (4) of Section 8 of the Trees Act and as no decision has been communicated within a period of one year from the date of the application, the permission to cut and remove the trees must be deemed to have been granted by the Tree Officer cannot also be accepted. Unless the authorities of the Forest Department assess the market value with reference to the prevailing market rate and the petitioners pay the same, no right accrues to the petitioners to cut and remove the trees standing on the lands granted to them. It is only when such right accrues, the question of making an application under Section 8 of the Trees Act for permission to cut and remove the trees will arise. In the instant case, the petitioners have not yet acquired such a right. Even if an application is made without a right being accrued to them to cut and remove the trees, such an application will have no value in the eye of law. That being so, the petitioners are not entitled to take advantage of the deeming provision and contend that permission to cut and remove the trees is deemed to have been granted.
12. For the reasons stated above, these Writ Petitions are disposed of in the following terms:
Respondents 1 and 2 are directed to cut and remove the trees standing on the lands granted to the petitioners the particulars of which are mentioned in the earlier portion of this order, on or before 31st March 1989. In case, they are not able to cut and remove the trees on the aforesaid lands on or before 31st March 1989, then, within one month from 31st March, 1989 they shall assess the value of the trees standing on the lands granted with reference to the prevailing market rate and call upon the petitioners to pay the same within a specified period. In case, the petitioners pay the value of the trees as assessed by the authorities of the Forest Department (respondents 1 and 2) they will be entitled to seek permission to cut and remove the trees under the Karnataka Preservation of Trees Act, 1976 and cut and remove the trees as per the permission granted under the said Act.