Karnataka High Court
Keshu S/O Omu Marathi vs The State Of Karnataka on 29 July, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
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NC: 2024:KHC-D:10669
WP No. 103980 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
WRIT PETITION NO. 103980 OF 2014 (GM-FOR)
BETWEEN:
SHRI KESHU S/O. OMU MARATHI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. DEVIMANE,
TQ: SIRSI, DIST: UTTAR KANNADA.
...PETITIONER
(BY SRI. SABEEL AHMED, ADV. FOR SRI. A.S. PATIL, ADV.)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY PRINCIPAL SECRETARY TO FOREST,
ECOLOGY AND ENVIRONMENT DEPARTMENT,
BANGALORE.
2. THE DEPUTY COMMISSIONER,
UTTAR KANNADA DISTRICT,
KARWAR.
3. CONSERVATOR OF FORESTS &
THE APPELLATE AUTHORITY,
SAROJA CANARA CIRCLE, SIRSI,
HANGARAKI
DIST: UTTAR KANNADA.
Location: HIGH
COURT OF
KARANTAKA
DHARWAD
4. THE DEPUTY CONSERVATOR OF FORESTS,
BENCH SIRSI DIVISION, SIRSI,
DIST: UTTAR KANNADA.
5. THE ASSISTANT CONSERVATOR OF FOREST
& ENQUIRY OFFICER,
JANMANE SUB DIVISION,
SIRSI, DIST: UTTAR KANNADA.
6. THE RANGE FOREST OFFICER,
JANMANE RANGE,
TQ: SIRSI, DIST: UTTAR KANNADA.
...RESPONDENTS
(BY SRI. ASHOK T. KATTIMANI, AGA)
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NC: 2024:KHC-D:10669
WP No. 103980 of 2014
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE OF WRIT OF
CERTIORARI OR ANY OTHER ORDER OR DIRECTION QUASHING THE
IMPUGNED ORDER DATED 28-09-2012 PASSED BY THE
RESPONDENT NO.3 IN APPEAL NO.75/2000-01 AS PER ANNEXURE-H
CONFIRMING THE IMPUGNED ORDER DATED 26-12-2000 PASSED BY
THE RESPONDENT NO.5 IN NO.ATIKRAMAN/JNM/VIVA-70/99-00 AS
PER ANNEXURE-G.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P. SANDESH
ORAL ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH) Heard the petitioner's counsel and the learned Additional Government Advocate for the respondents.
2. The petitioner while seeking the relief of writ of certiorari quashing Annexure-H passed by respondent No.3 dated 28.09.2012 confirming the impugned order dated 26.12.2000 passed by respondent No.5 as per Annexure-G, would contend that the petitioner is in possession of an area measuring to an extent of 1 acre 23 guntas situated in Sy.No.24 of Devimane village of Sirsi taluk from 1976. He contended that he has planted betel nut, banana, coconut trees over the said land. The -3- NC: 2024:KHC-D:10669 WP No. 103980 of 2014 petitioner has also constructed a house over the said land and he is residing along with his family members and regularly paying the property assessment in respect of the said house to the concerned Gram Panchayat. It is also his contention that the Tahasildar, Sirsi issued a possession letter to the petitioner in respect of the house constructed over the land in question on 19.09.1992. It is also his contention that respondent No.2 regularized unauthorized occupation of encroachment of forest land in case of similarly situated persons on 22.07.1998. It is also contended that based on the report submitted by respondent No.5, criminal case was registered against this petitioner for the forest offences and also under Sections 427 and 428 of IPC. Respondent No.5 also issued notice to the petitioner on 29.09.2000 and he appeared and given reply stating that he is in possession of the land from 1976 and has constructed a house and also grown agricultural crops. However, respondent No.5 without appreciating the legal contentions raised by the petitioner and by misinterpreting the provisions of the Act, has passed the -4- NC: 2024:KHC-D:10669 WP No. 103980 of 2014 impugned order directing the concerned authorities to evict the petitioner from the land in question and take possession of the same in favour of the Department vide order dated 26.12.2000.
3. The petitioner aggrieved by the said order, filed an appeal before respondent No.2 under Section 64-A of the Karnataka Forest Act, 1963 (hereinafter referred to as 'Act'). It is also contended that he was acquitted in criminal proceedings and respondent No.2 has also dismissed the appeal filed by him confirming the order passed by respondent No.5 on 28.09.2012. Hence, the orders passed by respondents No.2 and 5 at Annexures-H and G respectively are challenged in this writ petition.
4. The main contention of the counsel for the petitioner is that the petitioner is in possession of land from 1976 and there is no any notification issued by the Government by declaring the said land as reserved forest area. He would also vehemently contend that both respondents No.2 and 5 without any authority of law, -5- NC: 2024:KHC-D:10669 WP No. 103980 of 2014 committed an error in passing such orders. When the same is not declared as reserved forest area, the authorities have failed to exercise the powers as contemplated under Section 64-A of the Act and both respondents No.2 and 5 have failed to take note of the fact that the land was in possession from 1976. Further, respondent No.2 has committed an error in relaying upon the Government Order dated 05.05.1977 which specifies that if any person is in unauthorized occupation and encroached any portion of forest area after 27.04.1978 are liable to be evicted. It is contended that in the present case, the petitioner is in occupation of the area in question since from 1976 and the Government Order dated 05.05.1977 relied upon by respondent No.2 is not applicable to the case of the petitioner.
5. He also brought to notice of this Court the RTC extract which is produced as Annexure-A which discloses that the petitioner is in possession of the land from 1976. He also brought to notice Annexure-B and contends that in -6- NC: 2024:KHC-D:10669 WP No. 103980 of 2014 the year 1981 also, the RTC stands in his name. He also brought to notice of this Court Annexure-C wherein recommendation was made with regard to persons who are in unauthorized occupation, patta ought to have been issued. The counsel also brought to notice of this Court Annexure-C1, wherein proceedings of the Government were initiated and would vehemently contend that in terms of Annexure-C1, 3,000 acres of land was released from deemed forest including the Sy.No.11 so also Sy.No.24 of Devimane village. He places reliance on Annexure-D, possession certificate issued by the Tahasildar and Annexure-E, the notice issued by the respondent in respect of Sy.No.24 and the order passed by the respondent as per Annexure-G as also Annexure-H the order dismissing the appeal filed by the petitioner. He has also produced the order of acquittal passed in C.C.No.3910/2008.
6. Per contra, learned Additional Government Advocate appearing for the State would vehemently -7- NC: 2024:KHC-D:10669 WP No. 103980 of 2014 contend in the statement of objection that the forest land in respect of Sy.No.24 of Devimane village is clearly a reserved forest area. The said survey number is declared as reserved forest area under the British Government and notified in Official Gazette dated 11.05.1899 as per Annexure-R1. He also submits that as per Section 23 of the Act, reserved forests constituted previous to passing of the Act under Indian Forest Act shall be a reserved forest. After the enactment of Karnataka Forest Act, 1963, these notified areas have not been changed. So the questioned area in Sy.No.24 of Devimane village still remains as reserved forest area and no notification for denotifying the same has been issued and the same continues and remains as reserved forest area.
7. He would also submit that the petitioner encroached Sy.No.24 of Devimane village and spot visit was made and FIR was registered as per Annexure-R2 against the petitioner herein. Village map is also produced and the properties are also identified as per Annexure-R3. -8-
NC: 2024:KHC-D:10669 WP No. 103980 of 2014 A report was also given stating that it was encroached reserved forest as per Annexure-R4. The list of standing trees has also been prepared as per Annexure-R5. Petitioner has not produced any relevant documents before respondent No.2 and 5 except RTC. Now in the RTC at column No.12, the name of the Government has been mentioned.
8. He would further contend that the petitioner has entered the reserved forest area without any sanction and committed an offence under Section 24(g)(h) of the Act. He also contends that the notice was issued and sufficient opportunity was given to the petitioner and despite the same, he failed to produce any document showing that he has encroached the said reserved forest area before 1976. He also contends that the petitioner has no right on Sy.No.24 to an extent of 1 acre 23 guntas. The encroached area i.e. Sy.No.24 of Devimane village has been surveyed and confirmed that the same is part of reserved forest area. By Government order dated -9- NC: 2024:KHC-D:10669 WP No. 103980 of 2014 05.05.1997, there is no encroachment, respondent No.5 has to evict the same under Section 64-A of the Act and it is mandatory for him to do so. Therefore, he has issued a notice to the petitioner. He also contends that the Revenue Department has no authority to issue any possession certificate to the petitioner. Still, column No.12 of the revenue entries clearly disclose the name of the Government and hence it is mandatory for the revenue officials to obtain prior sanction of the Central Government under the Forest Conservation Act, 1980 before issuance of possession certificate.
9. He would also vehemently contend that the judgment of the High Court in ILR 2002 KAR 5265 is very clear that reserved forest land cannot be used for any other purposes. In view of notifying the said land long back as reserved forest area, the orders passed by respondents No.2 and 5 cannot be quashed.
10. Having heard the counsel for the petitioner and learned AGA for the respondents, the main contention of
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NC: 2024:KHC-D:10669 WP No. 103980 of 2014 the petitioner's counsel is that the petitioner is in possession of the land from 1976. Counsel for the petitioner brought to notice of this Court that similarly placed persons got an order regularizing their unauthorized occupation vide order dated 22.07.1998 at Annexure-C.
11. Having considered the contentions of the petitioner's counsel referring the document at Annexure- C1, no doubt the Government proceedings dated 16.04.1969 is very clear regarding releasing of 3,000 acres of forest land including Sy.No.24 and also Sy.No.11 of Devimane village. The property is situated in Devimane village is also not in dispute. No doubt, the learned AGA for the State also relies upon the earlier document at Ex.R.1 dated 11.05.1899 wherein Sy.No.11 of Devimane village so also Sy.No.24 are included. When the Government proceedings in terms of Annexure-C1 is clear vide order dated 16.04.1969 releasing some of the properties including Sy.Nos.11 and 24 and learned AGA for
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NC: 2024:KHC-D:10669 WP No. 103980 of 2014 the State does not dispute Annexure-C1 regarding releasing of some survey numbers that too in the year 1969, respondents No.2 and 5 ought to have taken note of the said Government order and instead they rely upon Annexure-R6 dated 05.05.1997. Learned AGA for the State also brought to notice of this Court para Nos.4 and 8 of Annexure-R6, wherein no doubt there is a direction that Government in revenue department shall submit district wise monthly reports regarding forest area surveyed, demarcated and regularizing in favour of encroachment to the original Chief Conservator of Forest, Government of India situated at Bengaluru, under a copy to the Principal Secretary to Government, Forest, Ecology and Environment Department and Principal Chief Conservator of Forests in Karnataka, Bengaluru on or before 10th of the succeeding month.
12. While passing the orders by respondents No.2 and 5, they have not taken note of the Annexure-C1 wherein a discussion was made that committee consisting
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NC: 2024:KHC-D:10669 WP No. 103980 of 2014 of the Deputy Commissioner, North Kanara District, the Divisional Forest Officers, concerned and a representative of the coffee Board was constituted for selecting suitable blocks of forest lands total 3,000 acres for coffee cultivation in North Kanara District. In the Government Order dated 23.07.1968 read above, the work relating to the submission of proposals to release one lakh acres of forest lands in North Kanara District for cultivation was entrusted to the High Power Committee constituted in Government Order No.AFD 240 FCL 67 dated 19.11.1967. A reference is also made that the committee constituted in the Government order dated 17.04.1968 read above has recommended release of 3,013 acres of forest land for coffee cultivation. The High Power Committee has recommended release of 17,208 acres 17 guntas of forest land for cultivation purposes.
13. When such an order has been passed and also details discloses the order dated 16.04.1969 wherein the survey number is also mentioned, the same ought to have
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NC: 2024:KHC-D:10669 WP No. 103980 of 2014 been taken note of by respondents No.2 and 5 and the same has not been done. When such being the material on record, I am of the opinion that respondents No.2 and 5 have committed an error in passing such orders and hence Annexures-G and H require to be quashed.
14. Counsel also brought to notice of this Court that in similarly placed circumstances, the regularization has been made in respect of some of the lands as per Annexure-C dated 22.07.1998 wherein also a reference was made that prior to 27.04.1978 if any persons have encroached and are cultivating the same, they have been notified of unauthorized occupation. When such being the material available on record, the very contention of the learned AGA appearing for the respondent-State cannot be accepted.
15. In view of the discussions made above, I pass the following:
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NC: 2024:KHC-D:10669 WP No. 103980 of 2014 ORDER The writ petition is allowed.
Annexures-G and H are quashed as sought in the writ petition.
Sd/-
(H.P.SANDESH) JUDGE SH List No.: 1 Sl No.: 32