Karnataka High Court

P S Mohan vs The State Of Karnataka on 4 January, 2022

Bench: Chief Justice, Suraj Govindaraj

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 4TH DAY OF JANUARY, 2022
                        PRESENT
     THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
                            AND
       THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
         WRIT PETITION NO.22567/2016 (GM-FOR-PIL)

BETWEEN


1.     P.S. MOHAN
       S/O SOMAIAH
       AGED ABOUT 47 YEARS
       VIRUPAKSHAPURA VILLAGE
       RANGASAMUDRA POST
       KUSHALANAGAR VIA
       SOMAVARAPETE TALUK
       KODAGU DISTRICT - 571 234

2.     J.P. RAJU
       S/O PUTTA (LATE)
       AGED ABOUT 55 YEARS
       RANGASAMUDRA VILLAGE AND POST
       KUSHALNAGAR VIA
       SOMAVARAPETE TALUK
       KODAGU DISTRICT - 571 234

3.     J.T. KALINGA
       S/O LATE THIMMA
       AGED ABOUT 55 YEARS
       RANGASAMUDRA VILLAGE AND POST
       KUSHALNAGAR VIA
       SOMAVARAPETE TALUK
       KODAGU DISTRICT - 571 234

4.     SANNAPPA
       S/O LATE BASAVAIAH
                           2



      AGED ABOUT 60 YEARS
      DODDA BETTAGERI VILLAGE
      GUDDE HOSUR POST
      KUSHALNAGAR VIA
      SOMAVARAPETE TALUK
      KODAGU DISTRICT - 571 234

5.    CHETHAN V.L.
      S/O LINGAPPA V.S.
      AGED ABOUT 45 YEARS
      VIRUPAKSHAPURA VILLAGE
      RANGASAMUDRA POST
      SOMAVARAPETE TALUK
      KODAGU DISTRICT - 571 234

                                        ...PETITIONERS

(BY SRI RAJANNA L, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REP. BY ITS REVENUE SECRETARY
      REVENUE DEPARTMENT
      VIDHANA SOUDHA
      BANGALORE - 560 001

2.    THE STATE OF KARNATAKA
      REP. BY ITS PRINCIPAL SECRETARY
      TO GOVERNMENT
      FOREST, ECOLOGY AND
      ENVIRONMENT DEPARTMENT
      4TH FLOOR, M.S. BUILDING
      BANGALORE - 560 001

3.    THE PRINCIPAL CONSERVATOR OF FOREST
      ARANYA BHAVANA
      18TH CROSS, MALLESHWARAM
      BANGALORE - 560 003
                           3



4.   THE CONSERVATOR OF FOREST
     KODAGU DISTRICT
     ARANYA BHAVANA
     MADIKERI - 571 201

5.   THE DEPUTY COMMISSIONER
     KODAGU DISTRICT
     MADIKERI - 571 201

6.   THE ASSISTANT COMMISSIONER
     MADIKERI SUB-DIVISION
     MADIKERI - 571 201

7.   THE THASILDHAR
     VIRAJPET TALUK, VIRAJPET
     MADIKERI DISTRICT - 571 218

8.   THE MANAGING DIRECTOR
     JUNGLE LODGES AND RESORTS LTD.,
     KARNATAKA STATE TOURISM
     DEVELOPMENT CORPORATION
     KHANIJA BHAVANA, RACE COURSE ROAD
     BANGALORE - 560 001
                                  ...RESPONDENTS

(BY SRI S RAJASHEKARA, AGA FOR R-1 TO 7;
 SRI MITHUN G.A., ADVOCATE FOR R-8)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT
RESPONDENT NOS.1 TO 7 TO TAKE ACTION AGAINST
RESPONDENT NO.8 TO STOP AND CLOSE ALL THE
ACTIVITIES ILLEGALLY RUNNING IN THE NAME OF JUNGLE
LODGES AND RESORTS LTD., IN DUBARE RESERVED
FOREST, KUSHALANAGAR RANGE OF KODAGU DISTRICT,
IN PURSUANT TO ANNEXURE - B REPRESENTATION BY THE
PETITIONERS AND ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, CHIEF JUSTICE MADE THE FOLLOWING:
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                             ORDER

Heard learned counsel for the petitioners, learned

Additional Government Advocate appearing for respondent

Nos.1 to 7 as well as Mr. Mithun G.A., learned counsel

appearing for respondent No.8.

2. This public interest litigation has been filed seeking

the following reliefs:

"a) Issue a writ in the nature of Mandamus or any other writ or order or direction, directing the respondents 1 to 7 to take action against the Respondent No.8 to stop and close all the activities illegally running in the name of Jungle Lodges and Resorts Ltd., in Dubare Reserved Forest, Kushalanagar Range of Kodagu District, in pursuant to the Annexure-B representation by the petitioners.

b) Issue any such order or direction as the Hon'ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity."

3. Learned counsel for the petitioners submits that

respondent No.8 has constructed a Jungle Lodge in Dubare

Reserve Forest, Kushalanagar Range of Kodagu District which

is manifestly wrong and illegal as it has been created in

contravention of sub-section (iii) of Section 2 of the Forest

(Conservation) Act, 1980. His submission is that under the

aforesaid provision, the permission from the Central

Government is required to be taken before granting any lease

to any private person or to any authority, corporation, agency

or any other organisation not owned, managed or controlled

by the State Government. It is contended that no such

permission was taken from the Central Government before

constructing the aforesaid Jungle Lodge and as such, the

entire activities done in the name of Jungle Lodges and

Resorts Limited in Dubare Reserve Forest, Kushalanagar,

Kodagu District, is wrong and illegal.

4. In support of his contention, learned counsel for

the petitioners has relied on the Division Bench judgment of

this Court in the case of M/s.GATEWAY HOTELS AND

GATEWAY RESORTS LIMITED, BANGALORE vs

NAGARAHOLE BUDAKATTU HAKKU STHAPANA SAMITHI,

VIRAJPET, COORG DISTRICT AND OTHERS (1999(5)

Kar.L.J. 63 [DB]).

5. In contra, learned Additional Government

Advocate appearing for respondent Nos.1 to 7 submits that

respondent No.8 has been constituted under the Karnataka

State Tourism Development Corporation (KSTDC) which is a

State body. It is submitted that the Jungle Lodges and

Resorts Limited is not owned, managed or controlled by any

private person, but it is totally under the control of the KSTDC

which is created by the State Government. It is further

submitted that no permission of the Central Government is

required for constructing any Jungle Lodge by the KSTDC in

the Reserve Forest area.

6. Learned counsel for respondent No.8 has raised

preliminary objection regarding the maintainability of the writ

petition on the ground that this public interest litigation has

been filed with some personal vested interest of the

petitioners as respondent No.8 had stopped the river rafting

activities in Dubare area which had adversely affected the

petitioners. It is submitted that no public interest is involved

in the instant writ petition and the writ petition has been filed

with ulterior motives.

7. We have considered the submissions made by

learned counsel for the petitioners as well as learned counsel

appearing for the respondents and gone through the record.

8. So far as the contention of learned counsel for the

petitioners that under sub-section (iii) of Section 2 of the

Forest (Conservation) Act, 1980, the Central Government's

permission is mandatory to be taken before assigning the

forest land by way of lease or otherwise to any authority,

corporation, agency or any other organisation not owned,

managed or controlled by the Government, we are of the

considered view that the Jungle Lodges and Resorts Limited

which has constructed the Jungle Lodge in Dubare Reserve

Forest, Kushalanagar, Kodagu District, is a body created by

the KSTDC which itself is totally controlled by the State

Government and no private person is involved in the activities

of the Jungle Lodges and Resorts Limited. The Managing

Director of the Jungle Lodges and Resorts Limited is a

Government servant belonging to IFS cadre service.

9. As per the additional statement of objections filed

by respondent No.8, the Karnataka Forest Department

represented by the Principal Chief Conservator of Forests

holds share of 30.85% whereas, the KSTDC has 34.70%, the

Governor of Karnataka has 34.44% and the balance of 0.01%

is with the Managing Director of the Jungle Lodges and

Resorts Limited. As such, we are of the considered view that

sub-section (iii) of Section 2 of the Forest (Conservation) Act,

1980 would not be applicable to the present facts of the case

and no permission of the Central Government under the said

provision was required for the construction of the impugned

Jungle Lodge. The contention of learned counsel for the

petitioners in this regard is misconceived.

10. Learned counsel for the petitioners has relied on

the judgment of this Court in the case of M/S.GATEWAY

HOTELS AND GATEWAY RESORTS LIMITED (supra),

particularly paragraphs 19 and 28 which, on reproduction,

read as under:

"19. The Forest (Conservation) Act, 1980, which was enacted to provide for conservation of forests and matters connected therewith or ancillary or incidental thereto, provides restriction on the dereservation of forests or use of forest land for non-forest purpose, under Section 2 which reads as:--

"2. Restriction on the dereservation of forests of use of forest land for non- forest purpose.--Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing.-

(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

(ii) that any forest land or any portion thereof may be used for any non-forest purpose;

(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.

Explanation.--For the purposes of this section "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;

(b) any purpose other than reafforestation,

but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire-lines, wireless communications and construction of fencing, bridges and culverts dams, waterholes, trench marks, boundary marks, pipelines or other like purposes".

A perusal of the Section 2 clearly indicates that no land or any portion thereof can be assigned by way of lease or otherwise to any private person or any authority, corporation, agency or any other organisations not owned, managed or controlled by the Government, except with the prior approval of the Central Government. The provisions of sub-section

(iii) of Section 2 of the Act are applicable to all forest land irrespective of the fact that such forest has been declared as a reserved forest or not."

"28. Keeping in view the facts and circumstances of the case, we are of the opinion that the learned Single Judge was justified in holding that the State Government had assigned a portion of the forest land by way of lease in favour of the appellant, which was a private company, admittedly without seeking prior approval of the Central Government. He, however, felt that in view of his finding that there existed an absolute prohibition on the grant of such rights under Section 20 read with Section 35(3) of the Wildlife Act, the lease itself was void which could not be acted upon by the appellant. We are, however, of the opinion that in case the lease was contrary to the provisions of Section 2(iii) of the Forest (Conservation) Act, it could not be said that the lease agreement was void ab initio without conferring any right upon the appellant, particularly in view of our finding regarding the interpretation of Sections 20 and 35(3) of the Wildlife Act. Even though the lease is not hit by the provisions of Section 20 of the Wildlife Act, yet it being contrary to the mandate of Section 2 of the Forest (Conservation) Act, cannot confer

any right upon the appellant to carry on with their scheme, proposals and objects accorded to them on the basis of the lease deed executed in their favour, unless and until the approval of the Central Government is obtained. In the absence of such an approval no activity of renovation, repairs etc., in terms of the impugned lease deed can be carried on till the approval of the Central Government in terms of Section 2 of the Act is granted."

11. Perusal of paragraph 28 of the judgment itself

clearly goes to show that the reserve forest land was given to

a private company without seeking prior approval of the

Central Government. However, that is not the case in the

present matter. We have already held that no private player

was involved in the Jungle Lodges and Resorts Limited which

is totally a body created by the KSTDC and as such, we are of

the considered view that the judgment relied on by learned

counsel for the petitioners in support of his contention is not

applicable to the present facts of the case.

12. In view of the above, we are of the considered

view that the writ petition has been filed without any material