Karnataka High Court
Smt. Renuka vs The State Of Karnataka on 7 September, 2022
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.16740 OF 2022 (GM-FOR)
BETWEEN:
1. SMT. RENUKA
W/O LATE THIMMAPPA
AGED 53 YEARS
RESIDING AT MANEGATTA
CHIKKANELLURU VILLAGE
SAGARA TALUK
SHIVAMOGGA DISTRICT PIN - 577 401.
2. SRI KAMALAKAR,
S/O LATE THIMMAPPA,
AGED 40 YEARS,
RESIDING AT MANEGATTA,
CHIKKANELLURU VILLAGE,
SAGARA TALUK,
SHIVAMOGGA DISTRICT PIN - 577 401.
...PETITIONERS
(BY SRI. NARAYAN M NAIK, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE DEPARTMENT OF FOREST
REPRESENTED BY THE PRINCIPAL SECREARY
M.S. BUILDING,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
3. THE RANGE FOREST OFFICER
OFFICE OF THE RANGE FOREST
2
SAGAR ZONE, SAGAR
SHIVAMOGGA - 577 401.
4. VILLAGE LEVEL FOREST RIGHT COMMITTEE,
REPRESENTED BY ITS CHAIRMAN,
CHIKKANELLURU VILLAGE,
SAGAR TALUK,
SHIVAMOGGA - 577 401.
...RESPONDENTS
(BY SRI. B.V.KRISHNA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTICE BEARING NO.VA.A.A./SA.VA.SA/706/2022-23 DTD
04.08.2022 ISSUED BY THE R-3 VIDE ANNX-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The short grievance of the petitioner-widow is against
the notice dated 04.08.2022, a copy whereof avails at
Annexure-A. The same reads as under:
"PÀæ¸ÀA:ªÀCC/¸ÁªÀ¸Á/706/2022-23 ¢£ÁAPÀ:04.08.2022
:£ÉÆÃnøï:
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¸ÀPÁðgÀzÀ ¸Áé¢Ã£ÀPÉÌ ¤ÃqÀĪÀ PÀÄjvÀÄ.
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¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ J¯ï.f.¹(f)£ÀA.787/2018gÀ DzÉñÀzÀAvÉ.
2. F PÀbÉÃj ¥ÀvÀæ ¸ÀA:687/2022-23 ¢:01.08.2022.
*****
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¢£ÁAPÀ:23.06.2022 gÀAzÀÄ ªÀiÁ£Àå PÀ£ÁðlPÀ ¨sÀÆ-PÀ§½PÉ ¤µÉÃzsÀ «±ÉõÀ
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DzÉñÀzÀAvÉ ¤AiÀĪÀiÁ£ÀĸÁgÀ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉƼÀî¯ÁUÀĪÀÅzÀÄ. "
2. Learned counsel for the petitioners argues that
this notice is generated with innocuous language although
in substance it is an order for removal of his client from the
occupation of the property in question. This could not have
been made without giving an opportunity of hearing to his
client. He also submits that the petitioner had made a
representation under the provisions of the Karnataka
Scheduled Tribes and other Forest Dwellers (Recognition of
Forest Rights) Act, 2006 and that ought to have been
considered & decided before issuing the impugned notice.
3. Learned AGA on request having accepted notice
for the respondents opposes the petition contending that
this notice is generated in the light of order of Court for
Land Grabbing Prohibition before whom the proceedings in
LGC 787/2018 although had abated, a direction was issued
for the protection of the subject land from encroachment.
The said part of the order having not been challenged, a
consequential notice cannot be faltered. So contending, he
seeks dismissal of the writ petition.
4. Having heard the learned counsel for the parties
and having perused the petition papers, this Court is
inclined to grant limited indulgence as under and for the
following reasons:
(a) The petitioner is in the occupation of the
subject property cannot be much disputed, there being
enough material to demonstrate the same such as the
proceedings before the Land Grabbing Court, etc.,
coupled with the very impugned notice itself. There is
force in the submission of the learned counsel for the
petitioner that notice of the kind could not have been
issued on the basis of some observation made by the
Karnataka Land Grabbing Prohibition Special Court, in a
matter which had abated on the death of petitioner's
husband, no LRs of the deceased having been brought
on record.
(b) It is relevant to advert to what the High Court
of Orissa in SRINIBAS JENA VS. JANARDAN JENA AIR
1981 Ori 1, at paragraph 12 has observed as to
meaning of 'abatement of proceedings'. The same reads
as under:
" 'Stay' and 'abatement' are not synonymous.
Abatement means an entire overthrow by
destruction of a suit while stay is a temporary
suspension of further proceedings in the suit.
"Abate" is a generic term derived from the
French work "Abattre" and signifies to quash, to
beat down or destroy. According to Black's Law
Dictionary, Fifth Edition, "abate" means to throw
down, to beat down, destroy, quash. The same
meaning is given in the Venkataramaiya's Law
Lexicon and Legal Maxims, Second Edition.
According to Prem's Judicial Dictionary, 1964
Edition, Volume I in Civil Law and abatement of
a suit is a complete termination of it. According
to Words and Phrases, (Permanent Edition), to
abate a suit is to put an end to its existence."
The Apex Court in BIBI RAHMANI KHATOON V, HARKOO
GOPE AIR 1981 SC 1450 while considering the principle
underlying abatement, observed as under:
"The concept of abatement is known
to civil law. If a party to a proceeding either in
the trial court or any appeal or revision dies and
the right to sue survives or a claim has to be
answered, the heirs and legal representatives of
the deceased party would have to be substituted
and failure to do so would result in abatement of
proceedings. Now, if the party to a suit dies and
the abatement takes place, the suit would abate.
If a party to an appeal or revision dies and either
the appeal or revision abates, it will have no
impact on the judgment, decree or order against
which the appeal or revision is preferred. In fact,
such judgment, decree or order under appeal or
revision would become final."
Thus, the abatement can be equated to the legal suicide of
proceedings, subject to all just exceptions into which
argued case of the petitioner does not fit. Therefore, what
the Special Court observed in an abated proceedings
cannot be much banked upon for sustaining the impugned
notice.
(c) Admittedly, the petitioner's application filed
under 2006 Act is still pending on the file of Jurisdictional
Authority. The said Act preserves several rights of forest
dwellers as observed by this Court in a catena of decisions.
The said application ought to have been considered before
issuing the impugned notice. It is more so, in view of the
Constitutional mandate under Article 350. This aspect
having not animated the subject notice, there is an error
apparent on its face warranting interference in writ
jurisdiction.
In the above circumstances, this petition succeeds in
part; a Writ of Certiorari issues quashing the impugned
notice; matter is remitted to 4th Respondent for
consideration afresh in accordance with law all contentions
are kept open. Till such a consideration takes place and
result thereof is informed to the petitioner, his occupation
shall not be disturbed.
Costs made easy.
Sd/-
JUDGE
DS
