ORDER
R. Gururajan, J.
1. Petitioners are challenging Annexure-A, an order dated 25-10-1999 in this petition. They are also seeking for a writ in the nature of prohibition, prohibiting the first respondent from passing any order on the basis of the impugned order. They also want a direction to the thirdrespondent to pay the value of the timber which is realised by auction of the timber cut and deposited in Government depot by the petitioner.
2. Petitioners state in the petition that the Special Assistant Commissioner, Shimoga, in terms of the orders dated 27-3-1972 and 10-1-1973 granted 18 acres of dry land in Sy. No. 40 of Murur Village of Sagar Taluk in favour of one Ganapayya. His brother Ramappa was also granted 9 acres of dry land in the same survey number by the Special Assistant Commissioner, Shimoga for an upset price. Ganapayya died leaving behind a Will in favour of Ramappa. After the death of Ramappa, petitioners are in possession and they are cultivating the land. They were required to pay the malki value at the time of grant of the land. The petitioners did not know about the non-payment of the malki value and as soon as the malki value was demanded by the Deputy Commissioner, the petitioners have paid the same. The Deputy Commissioner sought for an explanation with regard to the delay in making the payment. Explanation was submitted by the petitioner. Deputy Commissioner accepted the payment.
3. Petitioner made an application to the third respondent seeking for felling permission in terms of Karnataka Preservation of Trees Act. The third respondent referred the matter to the first respondent for revenue opinion. The first respondent gave an opinion on 17-4-1998 stating that the petitioners have a right in respect of the trees situated on the land in terms of Annexure-B. Petitioners were issued permission in terms of Annexure-C. After felling permission, it appears, some person inimically disposed to the petitioners complained to the third respondent, and the third respondent issued Annexure-A. Annexure-A is challenged in this Court.
4. Respondents have entered appearance. They have filed counter and they support the impugned order. They say that the malki value paid by the petitioners is not in accordance with law.
5. This Court at the time of admission passed an order on 19-6-2000 reading as under:
'It is submitted by the learned Counsels for the petitioner and also for the respondents that the timber in question had already been auctioned. Therefore, having regard to the facts and circumstances of the case, the only interim order that could be made in this petition is to protect the interest of the petitioner is to direct the respondents to pay the sale proceeds to the petitioner with interest at 9% from today till the date of payment in the event of the petitioner ultimately succeeding in the matter.
List this petition after eight weeks'.
6. The matter is heard for final disposal. Sri Ashok Harnahalli, learned Counsel would say that after issue of the permission, the respondents have no power to issue Annexure-A by way of cancellation. He also states that insofar as the value is concerned, it is for the revenue authorities and it is not for the forest authorities to demand under the Act, as has been done in the case on hand. He says that the third respondent, factually has reviewed his own felling permission. He finds fault with Annexure-A.
7. After hearing the learned Counsels on either side, I have carefully perused the impugned order. Admitted facts reveal of proceedings in the matter of payment of malki value payable by the petitioner. Deputy Commissioner has sought for payment of the same and the payment has already been made over by the petitioner. Material facts further reveal that an application was filed seeking for permission from the third respondent. The third respondent after obtaining revenue opinion from the first respondent in terms of Annexure-B granted permission in terms of Annexure-C. In Annexure-B the first respondent states that the petitioner has made payment towards the malki value and thereafter permission has been granted. After granting permission, in terms of Annexure-C, respondents have chosen to say that the petitioners should not remove the timber and that the malki value paid by the petitioner is not sufficient. This order to my mind is unsustainable in law. Karnataka Preservation of Trees Act do not in any way provide for any power in the matter of payment of malki value. That power is vested only with the revenue authorities. The Revenue Authorities have already demanded the payment and the same has been made over by the petitioner. In these circumstances, and in the absence of any power available under the Karnataka Preservation of Trees Act, the third respondent could not have issued Annexure-A, dated 25-10-1999, contrary to Annexure-C, dated 11-12-1998. Annexure-A is therefore in my view is without jurisdiction. In these circumstances, I deem it proper to set aside Annexure-A. At the same time, I deem it proper to reserve liberty to the Revenue Authority to proceed against the petitioner in the event of their coming to know of any short payment by the petitioner. That would save the interest of the revenue. This order is not to be construed as having any final say with regard to the malki value.
8. In these circumstances, this petition is allowed. Annexure-A is set aside. Respondents are directed to make over the payment in terms of the order dated 19-6-2000 within six weeks from the date of receipt of a copy of this order.
9. Ordered accordingly. No costs.