Sri Narayana Shetty vs Mr Gireesh Achar
2022 Latest Caselaw 12007 Kant

                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 21ST DAY OF SEPTEMBER, 2022

                       PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                         AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

       WRIT PETITION NO.16753/2022(GM-FOR)

BETWEEN:

SRI NARAYANA SHETTY
AGED ABOUT 63 YEARS
S/O VENKATARAMANA SHETTY
R/A # 54, KURAMBALLI SUDURU
SHIMOGA TALUK
SHIMOGA DISTRICT
KARNATAKA - 577 211.                    ...PETITIONER

(BY SRI P.P. HEGDE, SR. COUNSEL FOR
    MS. RACHITHA RAJSHEKAR, ADV.)

AND:

1.     MR. GIREESH ACHAR
       AGED 41 YEARS
       S/O LATE CHANDRA ACHAR
       R/A PANAJI VILLAGE
       BRAHMESHWARA HOSANAGARA
       POST AND TALUK
       SHIMOGA DISTRICT - 577 418.

2.     GOVERNMENT OF INDIA
       MINISTRY OF ENVIRONMENT
       AND FOREST REGIONAL OFFICE
       (SOUTHERN ZONE)
       KENDRIYA SADAN, IV FLOOR
       E & F WINGS, 17TH MAIN ROAD
                              2

        2ND BLOCK, KORAMANGALA
        BENGALURU - 560 034
        BY ADDL. PRICIPAL
        CHIEF CONSERVATOR.

3.      ADDITIONAL CHIEF SECRETARY
        TO GOVERNMENT
        FOREST ECOLOGY AND ENVIRONMENT
        ROOM NO.448, GATE NO.2
        M.S. BUILDING
        BANGALORE - 560 001.

4.      UNDER SECRETARY TO GOVERNMENT
        FOREST ECOLOGY AND ENVIRONMENT
        ROOM NO.448, GATE NO.2
        M.S. BUILDING, BANGALORE - 560 001.

5.      DEPUTY COMMISSIONER
        SHIMOGA DISTRICT
        SHIMOGA - 577 201.

6.      DEPUTY CONSERVATOR OF FOREST
        WILDLIFE DIVISION
        SHIMOGA DISTRICT
        SHIMOGA - 577 201.

7.      DEPUTY CONSERVATOR OF FOREST
        SAGAR DIVISION SAGAR TALUK
        SHIMO1GA - 577 401.               ...RESPONDENTS

(BY SRI S.S. MAHENDRA, AGA FOR R-3 TO R-7;
    SRI SHANTHI BHUSHAN, ASG FOR R-2)

        THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE    APPROPRIATE    WRITS    OR   ORDERS   RECALLING/
SETTING ASIDE/ QUASHING THE IMPUGNED ORDER DATED
04.03.2021 PASSED IN WP No-43037/2019 BY THIS HON'BLE
COURT VIDE ANNEXURE-M.


        THIS PETITION COMING ON FOR ORDERS THIS DAY,
VISHWAJITH SHETTY J., MADE THE FOLLOWING
                                   3

                            ORDER

This writ petition under Article 226 of the

Constitution of India has been filed with a prayer to

recall/quash the order dated 04.03.2021 passed by a

Division Bench of this Court in W.P.No.43037/2019.

2. We have heard the learned counsel appearing

for the parties and also perused the material available on

record.

3. Facts leading to filing of this petition briefly

stated are, respondent No.1 herein had filed public

interest litigation in W.P.No.43037/2019 seeking for the

following reliefs:

i. Quash the notification dated 23.02.2017 issued by the State Government in exercise of its power under Section 28 of the Karnataka Forest Act, 1963.

ii. Declare Section 28 of the Karnataka Forest Act, 1963 as ultravires and unconstitutional in view of its repugnancy with Section 2 of the Forest (Conservation) Act, 1980.

iii. Initiate proceedings under Section 3(A) & 3(B) of Forest (Conservation) Act, 1980 as against those who are responsible for violation of Section 2 of the Forest (Conservation) Act, 1980.

4. The Division Bench of this Court vide order

dated 04.03.2021 had allowed the said writ petition and

the operative portion of the said order reads as follows:

"ORDER

(i) The impugned order/notification dated 23rd February 2017 at Annexure-N is hereby quashed and set aside;

(ii) We hold that the power under Section 28 of the said Act of 1963 cannot be exercised without obtaining the prior approval of the Central Government in accordance with Section 2 of the said Act of 1963;

(iii) We also hold that even if the State Government purports to issue a notification under Section 28 of the said Act of 1963 without obtaining the prior approval of the Central Government in accordance with Section 2 of the said Act of 1980, such a notification shall be per se illegal;

(iv) If any of the officers are responsible for allowing non- forest activities on the lands subject matter of Annexure-N, needless to add that criminal law shall be set in motion by the State Government against the concerned officers by taking recourse to Section 3 (A) read with Section 3(B) of the said Act of 1980;

(v) The petition is allowed on the above terms with no order as to costs."

5. The petitioner herein who claims to be in

possession of a portion of the land covered under the

notification dated 23.02.2017 which was quashed by this

Court in W.P.No.43037/2019 claiming that he was one of

the beneficiary of the notification dated 23.02.2017 and

therefore, he was just and necessary party to the writ

petition.

6. The learned Senior Counsel appearing for the

petitioner submits that the petitioner was entitled to be

heard in W.P.No.43037/2019 and therefore the order

passed in the said writ petition is required to be reviewed

in exercise of the power under Article 226 of the

Constitution of India by this Court. He submits that, if the

affected party is not heard in the matter, this Court can

exercise its power under Article 226 of the Constitution of

India and recall or review the order passed by the Co-

ordinate Bench of this Court. In support of this argument,

he has relied upon the judgments of Hon'ble Supreme

Court in the cases of Shivdev Singh & Others v. State

of Punjab & Others1, Rupa Ashok Hurra v. Ashok

Hurra And Another2 and Pohla Singh Alias Pohla

Ram And Others v. State of Punjab And Others3.

7. It is trite law that this Court in exercise of its

power under Article 226 of the Constitution of India can

review an order passed by this Court to prevent

AIR 1963 SC 1909

(2002) 4 SCC 388

(2004) 6 SCC 126.

miscarriage of justice or to correct the errors committed

by it. The law in this regard is well settled and we are in

respectful agreement with the law laid down by the

Hon'ble Supreme Court in the judgments of Shivdev

Singh, Rupa Ashok Hurra and Pohla Singh's cases

(supra), on which reliance has been placed by the

learned Senior Counsel for the petitioner.

8. In the order dated 04.03.2021 passed by this

Court in W.P.No.43037/2019, this Court has quashed

notification dated 23.02.2017 issued by the State

Government in exercise of its power under Section 28 of

the Karnataka Forest Act, 1963 (for short, the Act, 1963)

on the ground that powers under Section 28 of the Act,

1963 cannot be exercised without obtaining prior

approval from the Central Government in accordance

with the Section 2 of the Forest (Conservation) Act, 1980

(for short, the Act, 1980) and it was also held that, even

if the State Government purports to issue a notification

under Section 28 of the Act, 1963 without obtaining prior

approval of the Central Government in accordance with

Section 2 of the Act, 1980, such a notification shall be

per se illegal.

9. The learned Senior Counsel has failed to

point out any illegality or infirmity in the order passed by

this Court in W.P.No.43037/2019 except stating that the

petitioner is a affected party since he is a beneficiary of

the notification dated 23.02.2017. This Court has

quashed the notification dated 23.02.2017 on the ground

that the State Government could not have issued the

said notification in exercise of its power under Section 28

of the Act, 1963 without obtaining prior approval from

the Central Government in accordance with Section 2 of

the Act, 1980 and this finding has been recorded based

on the law laid down by the Hon'ble Supreme Court in

the case of T.N.Godaverman Thirumulkpad vs. Union

of India & Others4 and in the case of Nature Lovers

Movement vs. State of Kerala and others5. This does

not preclude the State Government from issuing a fresh

notification in accordance with law.

1997(2) SCC 267

(2009) 5 SCC 373

10. Under the circumstances, we do not find any

good reason to recall or review the order dated

04.03.2021 passed by this Court in W.P.No.43037/2019.

Accordingly, we decline to entertain this writ petition. The

writ petition is therefore, dismissed.

SD/-

ACTING CHIEF JUSTICE

SD/-

JUDGE

NMS