Karnataka High Court
Shri Vithoba Govind Gaonkar vs The Ddeputy Conservator Of Forests on 26 July, 2024
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NC: 2024:KHC-D:10638
RSA No. 5016 of 2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5016 OF 2008
BETWEEN:
SHRI VITHOBA GOVIND GAONKAR,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O. KARAMBAL VILLAGE,
POST: TINNEGHAT,TQ: JOIDA,
DECEASED BY HIS LR'S.
1(A) SMT. PANDARI KOM. ARJUN GAONKAR,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. HOLDA VILLAGE, TQ: KHANAPUR.
1(B) SHRI BALKRISHNA VITHOBA GAONKAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. KARAMBAL VILLAGE, TQ: JOIDA.
1(C) SMT. NAGULI KOM. SRIKANT GURAV,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O. DONGARGAON VILLAGE,
TQ: KHANAPUR.
Digitally 1(D) SMT. ANJALI KOM. SRIKANT GAVADE,
signed by AGE: 30 YEARS, OCC: HOUSEHOLD,
BHARATHI S R/O. BAMANAGI VILLAGE, TQ: JOIDA.
Location:
HIGH 1(E) SHRI GOVIND VITHOBA GAONKAR,
COURT OF AGE: 29 YEARS, OCC: AGRICULTURE,
KARNATAKA R/O. KARAMBAL VILLAGE, TQ: HALIYAL.
...APPELLANTS
(BY SMT. SURABHI KULKARNI, ADV. FOR
SRI. PRAKASH B. ANGADI, SRI. CHETAN MUNNOLI &
SRI. LOKESH HEGDE, ADVOCATES FOR A1(B) & A1(E) (NOC))
AND:
1. THE DEPUTY CONSERVATOR OF FORESTS,
HALIYAL DIVISION, HALIYAL,
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NC: 2024:KHC-D:10638
RSA No. 5016 of 2008
TQ: HALIYAL,
DIST: UTTAR KANNADA.
2. THE ASSISTANT CONSERVATOR OF FORESTS,
ALNAVAR SUB-DIVISION, GANESHGUDI,
POST: GANESHGUDI, TQ: JOIDA.
3. THE RANGE FOREST OFFICER,
TINEGHAT, TQ: JOIDA.
4. THE SECTION FORESTER,
KARAMBAL, POST: ANMOD, TQ: JOIDA.
5. THE GOVERNMENT OF KARNATAKA,
REPRESENTED BY THE
DEPUTY COMMISSIONER,
UTTARA KANNADA, KARWAR.
...RESPONDENTS
(BY SRI. ABHISHEK MALIPATIL, HCGP FOR R1-R5)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CIVIL PROCUDE CODE PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DT. 31-5-2008 PASSED BY THE CIVIL
JUDGE, SENIOR DIVISION, YALLAPUR IN R.A.NO.36/2007 AND
CONFIRM THE JUDGMENT AND DECREE DT.20.03.2007 IN
O.S.NO.50/2004 PASSED BY THE CIVIL JUDGE, JUNIOR DIVISION,
DANDELI.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the plaintiff challenging the judgment and decree dated 31.05.2008 passed in R.A.No.36/2007 by the Senior Civil Judge, 1 Hereinafter referred to as the 'CPC' -3- NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 Yellapur2, whereunder the decree for injunction granted by the Trial Court in the suit filed by the plaintiff has been set aside by the First Appellate Court and suit in O.S.No.50/2004 filed by the plaintiff has been dismissed.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that he is in possession, cultivation and enjoyment of agricultural land to the extent of 3 acres in Sy.No.6-A1 situated in Karambal Forest, Karambal village, Joida3 for more than 4 decades and that he constructed a stone compound wall in the said land. That he has a cattle shed and has grown different fruits. That the request of the plaintiff for regularization of land is pending consideration in proceedings ACF.Encroachment.166/2003-04 before defendant No.2 and that no orders have been passed. That defendant-authorities attempted to trespass the 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as 'suit property' -4- NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 property of the plaintiff. Hence, the plaintiff has filed the suit for permanent injunction to restrain the defendants from interfering with the peaceful possession of the plaintiff over the suit property.
4. The defendants entered appearance before the Trial Court and defendant No.3 filed a written statement which was adopted by the other defendants No.1, 2 and
4. It is the contention of the defendants that the suit land is a forest land and the plaintiff has encroached the same. That in view of the Government decision for regularization of encroachment, a committee was constituted in the year 1978 and no application has been moved by the plaintiff seeking regularization of the encroached land. That the proceedings have been instituted by the Assistant Commissioner, Forest Alnavar, Sub-division and hence, the plaintiff has filed the suit. That in the year 2004, the Government of Karnataka has constituted a Taluka Level Encroachment Regularization Committee for Joida Taluk and the plaintiff was required to approach the same. The -5- NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 plaintiff being an encroacher cannot maintain the suit. Hence, the defendants sought for dismissal of the suit.
5. Consequent to the pleadings of the parties, the Trial Court framed the following issues:
"ISSUES
1. Whether the plaintiff proves that he is in Possession of the suit property as on the date of the suit?
2. Whether the alleged interference by the defendants No.1 to 4 is true?
3. Whether the plaintiff is entitled for decree as prayed for?
4. What order or decree?"
6. The Trial Court vide judgment and decree dated 20.03.2007 decreed the suit. Being aggrieved, the defendants preferred R.A.No.36/2007. The plaintiff appeared before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:
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NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 "1. Point No.1: Whether defendats/Appellants have followed due procedure of law by initiating the proceedings after issuing prior notice to the plaintiff/respondent according to natural justice?
Point No.2: Whether the judgement and decree of the lower court calls for interference with by this court?"
Point No.3: To What Order?"
7. The First Appellate Court by its judgment dated 31.05.2008 has recorded a finding that the plaintiff has not sought for any declaration to declare him as the owner of the suit property by way of adverse possession. Further, the First Appellate Court held that there are no sufficient material on the side of the plaintiff to hold that he is in possession of the suit property. That the Government is a true owner and that they have initiated proceedings under Section 64 of the Karnataka Forest Act, 1963.4 Hence, the First Appellate Court has allowed the appeal, set aside the judgment and decree passed by 4 Hereinafter referred to as 'Act of 1963' -7- NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 the Trial Court and dismissed the suit. Being aggrieved, the plaintiff has filed the above appeal.
8. This Court by order dated 29.08.2008 admitted the above appeal and framed the following substantial question of law:
"Whether the First Appellate Court was justified in reversing the finding of the Trial Court on possession of the suit property by the appellant and thereby reversing the decree of the Trial Court?"
9. Learned counsel for the appellant Smt.Surabhi Kulkarni vehemently contended that the plaintiff admittedly being in possession of the suit property and having filed various applications for regularization and grant of the property in his favour, no orders have been passed on the application/request made by the plaintiff and hence till such orders are passed, the plaintiff is entitled to an order of injunction. Hence, she seeks for setting aside of the order of the First Appellate Court and -8- NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 confirming the judgment and decree passed by the Trial Court.
10. Per contra, learned Additional Advocate General, Sri.Keshava Reddy along with Sri.Abhishek Malipatil learned High Court Government Pleader representing the respondents submits that the plaintiff is an encroacher of forest land and the authorities have initiated proceedings under Section 64A of the Act of 1963. That the plaintiff has been notified of the said proceedings and he has replied to the said notices by contending that due to the pendency of the present litigation, the said enquiry is required to be dropped. It is further contended that despite various notices, the plaintiff is repeatedly appearing in the proceedings and taking time on the ground of pendency of the present appeal before this Court.
11. It is further submitted that the earlier proceedings under Section 64A of the Act of 1963 having been initiated by the Office of the Range Forest Officer, -9- NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 Tinaighat, has subsequently been transferred and presently the proceedings under Section 64A of the Act of 1963 are being prosecuted by the Office of the Assistant Conservator of Forests, Wildlife Sub-division, Dandeli. That the plaintiff vide notice dated 22.07.2024 has been notified of the same and that the next date of proceedings and the said enquiry is on 02.08.2024. It is further submitted that the First Appellate Court has rightly dismissed the appeal and the same is not required to be interfered with by this Court in the present second appeal.
12. The submissions of both the learned counsels have been considered and the oral and documentary evidence on record including records of the Trial Court and First Appellate Court have been perused.
13. It is not in dispute that the proceedings under Section 64A of the Act of 1963 have been initiated by the defendant-authorities against the plaintiff. Section 64A of the Act of 1963 reads as follows:
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NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 "64-A. Penalty for unauthorisedly taking possession of land constituted as reserved forest [district forest, village forest, protected forest and any other land under the control of the Forest Department].-(1) Any person unauthorisedly occupying any land in reserved forest, "[district forest, village forest, protected forest and any other land under the control of the Forest Department) may, without prejudice to any other action that may be taken against him under any other provision of this Act or any other law for the time being in force, be summarily evicted, by a Forest Officer not below the rank of an Assistant Conservator of Forests and any crop including trees raised in the land and any building or other construction erected thereon shall, if not removed by him within such time as the Forest Officer may fix, be liable to forfeiture:
Provided that before evicting a person under this sub-section he shall be given a reasonable opportunity of being heard.
(2) Any property forfeited under sub-section (1) shall be disposed of in such manner as the forest Officer may direct and the cost of removal of any crop, building or other work and of all works necessary to restore the land to its original
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NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 condition shall be recoverable from the person evicted in the manner provided in Section 109. (3) Any person aggrieved by an order of the Forest Officer under sub-section (1) may, within such period and in such manner as may be prescribed, appeal against such order to the State Government or to such officer as may be authorised by the State Government in this behalf and the order of the Forest Officer shall, subject to the decision in such appeal, be final."
(emphasis supplied)
14. It is clear from a reading of Section 64-A of the Act of 1963 that a complete procedure is specifically stipulated under a specific statute for eviction of persons found to be in un-authorized occupation of forest land. It is further relevant to note that Section 64-A(3) provides an appeal remedy also. The defendant-authorities, having noticed that the plaintiff is in possession of the forest land, on the ground that the same is an encroachment, has initiated proceedings for eviction of the plaintiff.
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NC: 2024:KHC-D:10638 RSA No. 5016 of 2008
15. The contention of the plaintiff that various representations/applications have been made for granting/regularization of the suit property which he is in possession of has not been considered and till such time, the possession of the plaintiff is required to be protected is not required to be favourably considered having regard to the fact that admittedly the defendant-authorities have initiated proceedings in accordance with law.
16. The contention of the plaintiff that he is entitled to regularization is required to be made in the said proceedings, since consideration of the same is depended on various factual aspects as well as various policies of the State. Proceedings having been initiated against the plaintiff in accordance with law, the plaintiff will not be entitled to an order of injunction as is sought for in the plaint.
17. In view of the aforementioned, the First Appellate Court was justified in setting aside the decree
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NC: 2024:KHC-D:10638 RSA No. 5016 of 2008 passed by the Trial Court. Hence, the substantial question of law framed by this Court is answered in negative.
18. It shall be open to the plaintiff to participate in the proceedings initiated by the defendants under Section 64A of the Act of 1963 and urge all the defences, as also to pursue such other remedies as available to the plaintiff in accordance with law.
19. Hence, the following:
ORDER i. The above appeal is dismissed;
ii. The judgment and decree dated 31.05.2008 passed in R.A.No.36/2007 by the Senior Civil Judge, Yellapur is confirmed.
SD/-
JUDGE SH CT-MCK, List No.: 1 Sl No.: 35