Karnataka High Court
Sri K T Giriyanna vs State Of Karnataka on 20 December, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 55091 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 55091 OF 2018 (LA-BDA)
BETWEEN:
SRI K T GIRIYANNA
AGED ABOUT 85 YEARS,
NO.797, 10TH MAIN, 35TH CROSS,
4TH BLOCK JAYANAGAR
BENGALURU-560 011.
...PETITIONER
(BY SRI.UDAYA HOLLA., SENIOR ADVOCATE FOR
MS. ADITI GUJER, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally
signed by URBAN DEVELOPMENT DEPARTMENT
ANAND N
Location: REPRESENTED BY ITS SECRETARY
HIGH
COURT OF VIKASA SOUDHA
KARNATAKA
BENGALURU-560 001.
2. BANGALORE DEVELOPMENT
AUTHORITY
REPRESENTED BY ITS COMMISSIONER
HAVING OFFICE AT
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WP No. 55091 of 2018
T CHOWDAIAH ROAD,
KUMARA PARK WEST
BENGALURU-560020.
3. THE SPECIAL LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD,
KUMARAPARK WEST
BENGALURU-560020.
4. SMT. H.V. JAYALAKSHMI
W/O LATE SAKEGOWDA
R/AT NO.421, 60TH CROSS,
HEALTH LAYOUT, ANNAPURNESHWARI NAGAR,
SRIGANDADHAKAVAL
BENGALURU 560091.
5. SMT. NANDINI @ NANDINI BHARANAIAH
D/O LATE BHAANAIAH AND
LATE SHANTHAMMA BHARANAIAH
R/AT NO.79, VENKATESHA NILAYA
SERPENTINE ROAD
NEAR KANNIKAPARAMESHWARI TEMPLE
K.P. WEST BENGALURU NORTH
SHESHADRIPURAM
BENGALURU 560020.
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WP No. 55091 of 2018
6. THE ASSISTANT CONSERVATOR OF FORESTS
BENGALURU SOUTH SUB DIVISION
BENGALURU URBAN DIVISION
CHOWDAIAH ROAD , NH - 4
KODANDARAMPURA
MALLESHWARAM WEST
BENGALURU - 560 012
...RESPONDENTS
(BY SRI. BHOJEGOUDA T KOLLER, AGA FOR R1, R3 &
R6;
SRI. DHYAN CHINNAPPA, SENIOR ADVOCATE FOR
SRI. K. KRISHNA, ADVOCATE FOR R2;
SRI. A. CHANDRACHUD, ADVOCATE FOR R4 & R5)
THIS WP IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO-
DECLARE THAT THE SCHEME FOR "FURTHER
EXTENSION OF BHANASHANKARI 6TH STAGE" NOTIFIED
BY THE R-2 AS TO THE PROPERTY DESCRIBED IN THE
SCHEDULE TO THIS WRIT PETITION HAS LAPSED AND
CONSEQUENTLY QUASH (i) THE PRELIMINARY
NOTIFICATION DATED 07.11.2002 ISSUED BY THE R-2
(VIDE ANNEXURE-A); (ii)THE FINAL NOTIFICATION
DATED 09.09.2003 ISSUED BY THE R-2 (VIDE
ANNEXURE-B).
THIS PETITION, COMING ON FOR FINAL
DISPOSAL, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 55091 of 2018
ORDER
The petitioner, who asserts the ownership of
land measuring 10 acres 07 guntas in Sy.Nos.70 and
71 of Turahalli village, Uttarahalli Hobli, Bengaluru
South Taluk [the subject property], has filed this
petition for declaration that the 'Further Extension Of
Banashankari VI Stage Scheme' insofar as the subject
property stands lapsed, and for quashing the
following insofar as the subject property:
[a] the Preliminary Notification dated
07.11.2002 [Annexure-A],
[b] the Final Notification dated 09.09.2003
[Annexure-B] and
[c] the Awards dated 10.11.2003 and 10.11.2003
[Annexures-C1 and C2].
The petitioner, while claiming compensation in a sum
of Rs.50,00,000/-, has also sought for declaration
that the Bangalore Development Authority [the
second respondent and hereinafter referred to as 'the
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BDA'] and the persons claiming under BDA cannot
have any interest in the subject property.
2. The BDA has published Preliminary
Notification dated 07.11.2002 under Section 17 of the
Bangalore Development Authority Act, 1976 [for
short, 'the BDA Act'] proposing to acquire an extent of
1532 acres 17 guntas [including the subject property]
in different villages within Uttarahalli and Kengeri
Hobli of Bengaluru South Taluk for the purposes of
formation of 'Further Extension of Banashankari VI
Stage', but the State Government has ultimately
published the Final Notification dated 09.09.2003
under Section 19(1) of the BDA Act acquiring an
extent of 750 acres.
3. The petitioner's grievance with the
impugned notification insofar as the subject property
must be examined in the light of the proceedings
under the Karnataka Forest Act, 1963 ['the Forest
Act'], the orders in the different writ/original
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proceedings and the BDA's case that possession of
the subject property is taken and a certain portion
thereof is developed with construction of a 80 Feet
Road and formation of certain sites. The Assistant
Conservator of Forests, Bangalore South Sub-
Division [the sixth respondent], asserts that remaining
extent in the subject property is Turahalli Gudda
Forest.
The writ petition in W.P.No.44949/2003 and
connected writ petitions:
4. The petitioner and the other persons who
were the owners of the lands that are notified for
acquisition have filed their respective writ petitions in
W.P.No.44949/2003 and connected writ petitions.
This Court has disposed of these writ petitions on
06.06.2006 upholding the acquisition proceedings
but with certain directions, and insofar as the
present petitioner, the relevant directions will be as
follows:
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B- (i) All the petitioners who are the
landowners/converted site owners
(duly converted for non-agricultural
use of land, in accordance with law),
who are seeking dropping of the
acquisition proceedings in so far as
their respective lands/sites are
concerned, on the ground that: (a)
their lands are situated within green
belt area (b) they are totally built up;
(c) converted for non- agricultural use;
(d) garden and recognized nursery
lands; (e) who have built hospitals,
educational institutions and factories;
(f) who have not been served with the
notice of acquisition and (g) who are in
doubt about the inclusion of their land
in the notification are permitted to
make appropriate application to the
authorities seeking such exclusion
and exemption and producing
documents to substantiate their
contentions within three months from
the date of this order......
(C) Till the aforesaid exercise is
undertaken by the authority on the
applications filed by the petitioners
either for allotment of site or de-
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notifying or exemption sought for are
considered, their possession shall not
be disturbed and the existing
construction shall not be demolished.
After considering the application in the
light of the aforesaid direction, the
authorities are at liberty to proceed
with the acquisition.
The underlining is by this Court.
The petitioner's subsequent Representation and
the BDA's Resolution:
5. On 15.07.2006, the petitioner has filed his
representation [Annexure-K] with the BDA in terms of
the liberty reserved by this Court. The petitioner's
request in this representation is as follows:
"............. This is the disparity and
discrimination that has happened to me. My
garden lands in survey Nos. 70 & 71 is totally
developed garden having coconut, arcanut,
valuable teak & other horticulture plants.
These are only lands BDA has notified in the
final notification.
............. Also BDA has developed a
connecting Road to the project in our lands
which has been clearly earmarked on the
village map and sketch enclosed along with
this letter. By acquiring our lands BDA will be
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putting us in a hardship of loosing our hard
earned investments, also on our daily Bread.
Hence, I appeal to your good self to
exclude our lands from further acquisition
procedures as per Honourable High court
orders on parity. Since, BDA has already
developed a connecting road in part of our
lands. It agreeable for me to retain the
remaining portion of the lands in Survey
Nos.70 & 71 apart from the road............."
5.1 The BDA has even resolved to delete the
subject property from the acquisition. A copy of the
Resolution dated 25.06.2007 is appended to this
petition, and insofar as the subject property, this
Resolution, reads as under:
ಕಮ ಾ ಮದ ಸ ೆ ಒಟು ಅ ಸೂಚ"ೆಯ ಸಂ$ಪ ವರಗಳ(
ಸಂ ೆ ೆಸರು ನಂ.
ನಂ ೕಣ ೕಣ
ಎ-ಗುಂ
9 vÀÄgÀ 70 4-13 4-13 ಸದ) ಜ+ೕ,ನ-.
ರ2ೆಗಳನು3 ,+ ದು4, ಕಲು.
ಚಪ67 ಾ8ದು4, 97ಎ
"ಾಮಪಲಕ
ಾಕ:ಾ;ರುತ=ೆ. ಸದ)
ಜ+ೕ, ೆ ಅರಣ ಇ:ಾ ೆ ೆ
2ೇ)ರುವ?ದ)ಂದ
ಜ+ೕನುಗಳನು3
ಅ ಸೂಚ"ೆ@ಂದ
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0ೈ9ಡುವಂCೆ ಸ0ಾ ರದ ಪತ
1"ಾಂಕ 26/12/2006 ರ
ಪತ ದ DೕEೆ ೆ ಈ
ಜ+ೕನುಗಳನು3 ಪ)Gೕ- ,
ಅರಣ ಇ:ಾ ೆ ೆ
9ಟು 0ೊಡಬಹು=ಾ;ರುತ=ೆ1
5.2 After this Resolution dated 25.06.2007,
the BDA has addressed a Communication dated
01.12.2007 to the petitioner informing him that his
request for deleting the subject property from
acquisition is considered in terms of the
Government's request in its letter dated 26.12.2006
and a decision is taken to exclude the subject
property from acquisition for the benefit of the forest
department. The De-notification Committee, a
committee constituted by the State Government
under the Chairmanship of the Chief Secretary, in its
The translation of this could be as follows:
"Three roads have been formed, there is a Board saying
this is BDA property and there is stone slab fencing.
Because the subject lands belong to the Forest Department,
as requested by the Government by its order dated
26.12.2006, the property will have to be excluded from the
acquisition."
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meeting on 17.12.2008 has also accepted the BDA's
Resolution dated 25.06.2007 that the subject
property and certain other properties, especially in
the villages of Vajarahalli, Hosalli, Thalghatpura,
Gubbala and Turahall are to be excluded from the
acquisition proceedings, but it is common cause that
the State Government is yet to take a decision and
the matter is pending with the State Government.
The details of the suit in O.S.No.1121/2015:
6. The petitioner contends that, when the
matters stood thus, certain persons asserting that
the BDA has allotted sites in the subject property in
their favour have attempted to interfere with his
possession of the subject property, and as such, he
has filed the suit in O.S.No.1121/2015 for
declaration and injunction against such third parties
and BDA. The civil Court has granted the interim
order on 23.09.2015 granting ex parte temporary
injunction, and it has ultimately decreed the suit in
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O.S.No.1121/2015 on 20.12.2022 and that no appeal
is filed against such judgment and decree. The
petitioner has also referred to the complaints lodged
with the jurisdictional police and the allotments
made by the BDA.
The proceedings under the Forest Act and the
corresponding writ proceedings:
7. The Assistant Conservator of Forests,
Bangalore South Sub-Division, has filed Objection
Statements placing on record the following. A total
extent of 159 acres 13 guntas in Sy.No.42 of
Turahalli village is notified as Turahalli Gudda Forest.
The concerned Range Forest officer, in the year 2006,
has registered proceedings against the petitioner for
unauthorizedly occupying an extent of 7 Acres in
Sy.No.42 of Turahalli village. Subsequently, the
Deputy Conservator of Forests, after the conclusion
of the proceedings under Section 64-A(1) of the
Forest Act, has directed the petitioner, by the order
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dated 11.01.2007, to vacate and handover vacant
possession of 6 acres 38 guntas.
7.1 The petitioner has impugned the Deputy
Conservator's Order dated 11.01.2007 in Appeal No.
12/2007 under Section 64A(3) of the Forest Act and
Rule 69 of the Karnataka Forest Rules 1969, and the
Appellate Authority [the Conservator of Forests], has
disposed of this appeal on 05.12.2008. The
petitioner has called in question the Appellate
Authority's order in WP NO.89/2009, and this writ
petition is allowed on 23.07.2012 quashing the order
dated 05.12.2008 and directing the Appellate
Authority to re-hear the appeal and directing a survey
in the presence of the petitioner.
7.2 In the meanwhile, certain criminal
proceedings2 are initiated that have culminated in
this Court's order dated 12.06.2012 in Criminal
petition No. 2664/2008. The criminal proceedings
2 The proceedings are in CC No. 2176/2007.
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are quashed but with liberty to the Forest Authorities
to conduct a fresh survey. The State Government
has constituted a High-Level Committee vide the
Government Order dated 26.10.2015 to examine the
encroachment of forest lands in Bangalore Urban
District. Thereafter, an authorized Map is prepared
affirming that 4 acres 13 Guntas in Sy No. 70 and 2
acres 27 guntas in Sy No. 71 - an extent of 7 acres in
the subject property - is part of Turahalli Gudda Minor
Forest and it is held that the petitioner has
encroached this extent.
7.3 The Appellate Authority, following the
survey and this Court's order of remand as aforesaid
in W.P.NO.89/2009, has heard the petitioner again,
and the Appellate Authority by the order dated
27.10.2017 has directed the petitioner to vacate the
encroachment. The petitioner has challenged the
Appellate Authority's order dated 27.10.2017 in WP
No.54268/2017, and this Writ Petition is disposed of
on 27.02.2019 quashing the order dated 27.10.2017
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and directing the Appellate Authority to re-consider
the petitioner's grievance.
7.4 After this Court's order dated 27.10.2017
in WP No.54268/2017, yet another joint survey is
conducted on 22.07.2021 with the petitioner, the
Appellate Authority and the other officials of the
Forest Department participating in the proceedings.
The Assistant Conservator of Forest has asserted that
the forest officials have raised certain objections, and
there is no response on the same and that the
Appellate Authority is yet to hear the appeal because
the outcome of the survey is not finalized.
The BDA's case:
8. The BDA asserts that the subject property
is comprised in Package - VIII of Further Extension of
Banashankari VI Stage. It has issued the Final
Notification dated 09.09.2003 for execution of
development work in different packages [including
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Package - VIII] and Work Order is issued to a
contractor, who after completion of the work, has
raised the bills that are paid on multiple dates
starting from 12.04.2004. As regards the
communication by the Government for exclusion of
the subject property from acquisition, the BDA
contends that a joint survey is conducted in the
presence of the Conservator of Forests, Bengaluru
[South] and other officers of the Forest Department,
but such joint survey has remained inconclusive
because the Forest Department has not accepted the
joint survey.
8.1 The BDA also contends that the
Conservator of Forests, Bengaluru [South] will be the
appellate authority to decide on the proceedings
initiated under the Forest Act against the petitioner
for unauthorized occupation of 7 acres in original
Sy.No.42, and this Authority is yet to decide on the
merits of the petitioner's appeal as against the finding
that the petitioner has encroached the Forest land.
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The BDA contends that the subject property is
notified as forest land and as such, the petitioner
cannot have any grievance.
8.2 The BDA has produced a sketch and
Google Image Print out to demonstrate that the
substantial portion of the lands in Sy.No.71 and
Sy.No.70 [the subject property] is with the Forest
Department and a 80 feet wide road developed by it
runs through these lands and the adjacent lands and
that sites have been developed in the remaining
extent.
8.3 The BDA thus asserts that possession of a
certain portion of the subject property while also
contending that the Forest Department has raised a
dispute asserting that the subject property is a part
of the forest declared as such by the erstwhile Mysore
Maharaja. The BDA further asserts that the Regional
Commissioner, Bengaluru Division, is informed that
certain documents have been created in respect of
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the subject property and adjacent lands in Sy.Nos.69,
72, 73 and 74 of Turahalli village and these lands are
sold creating a false title in these properties. The BDA
also contends that the Commissioner, Survey and
Revenue Department, has informed the BDA that the
notification for acquisition of 10 acres 35 guntas of
land must be withdrawn.
The Private Respondent's case:
9. The private respondents have filed their
statement of objections reiterating the stand taken by
the BDA and the Forest Department. They also
assert that they have been allotted corresponding
sites in the area as mentioned in the approved plan
as extracted above and that they are in possession of
the property. This Court must record that these
private respondents claim the benefit under the
respective sale deeds and the revenue records.
The Rival Submissions:
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10. Sri Udaya Holla, the learned Senior
Counsel for the petitioner, while being categorical
that the petitioner has consented for formation of a
80 Feet Wide Road within the subject property,
submits that the petitioner must succeed in the writ
petition because he can demonstrate that the
possession of the subject property has not been taken
by the BDA after the impugned Final Notification.
Sri. Udaya Holla canvasses that the dispute whether
the subject property is a forest land or not must
necessarily be decided in the appropriate
proceedings, but the acquisition notifications cannot
prevail because [a] this Court's order dated
06.06.2006 in W.P.No.44949/2003 and connected
writ petitions is that if a particular land in an
agricultural or nursery land, it must be excluded, [b]
the BDA has resolved to exclude the subject property
from acquisition and [c] the BDA has failed to
demonstrate that it has taken actual possession of
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the subject property. The learned Senior Counsel's
primary submissions are:
10.1 The petitioner had the advantage of the
interim order during the pendency of the earlier writ
petition in W.P.No.53576/2003 [one of the connected
writ petition in W.P.No.44949/2003] and continued to
have the benefit of orders against dispossession
because this Court, while disposing of the aforesaid
writ petition, has directed the BDA not to disturb
possession. The petitioner also had the benefit of
temporary injunction granted in the original suit
which admittedly is partly decreed on 20.10.2022
granting permanent injunction.
10.2 The BDA issued a Notice dated
22.12.2006 informing the Petitioner about a proposed
spot inspection that would be conducted on
04.01.2007, but no spot inspection as scheduled was
conducted. However, a spot inspection is allegedly
conducted on 04.12.2007, and the officials of the
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BDA have identified several trees3 and developments
in the subject property besides a 80 Feet Wide Road
that runs through the Said Land.
10.3 These circumstances, and the fact that
the BDA's officials have recorded the nature of the
standing trees and that the Forest Officials admit the
petitioner's possession [though allegedly
unauthorizedly] demonstrate that the petitioner
continues to be in possession of the subject property.
The BDA's resolution to exclude the subject property,
and the De-Notification Committee's acceptance
thereof, must necessarily be considered in the light of
the above.
10.4 The BDA has resolved to exclude the
subject property from the acquisition proceedings,
and if the resolution is to exclude the subject
3 The reliance is on Annexure - L, which is a Note Sheet in
the BDA's concerned file. It is recorded that at the time of
inspection on 04.12.2007 it is observed that there are 5
coconut trees, 195 teak Trees, a Jack Fruit Tree, a Stone
Rivetted Well and Tube Well.
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property from the acquisition proceedings, it is
indisputable that no sites are formed therein.
Therefore, neither the Forest Department's claim nor
the BDA's case that the Forest Department is in
possession of some portion of the subject property
and that sites have been formed in the other extent,
can deter the merits of the petitioner's case.
10.5 The BDA relies upon a mahazar drawn in
cyclostyled form to assert that possession is taken,
but in the light of a string of decisions by this Court,
including Meenakshi Thimmaiah and Ors. v. State
of Karnataka and Anr4, it is settled that mere
drawing up of a mahazar in cyclostyled manner
cannot be accepted as a proof of possession being
taken especially when the entries in RTCs for the
subject properties are in favour of the petitioner. The
BDA, unless it establishes that actual possession of
the subject property is taken as declared by this
4 ILR 2010 KAR 62
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Court in V. Gunda Reddy v. The Secretary
Department of Revenue and Others5, must fail in
supporting the impugned notifications.
11. Sri Dhyan Chinnappa, the learned Senior
Counsel for the BDA, is supported by Sri A.
Chandrachud, the learned Counsel for the private
respondents. The learned Senior Counsel, without
contesting the reliance on the proposition that
drawing up of mahazar would itself not suffice to
demonstrate that the possession is taken pursuant to
the acquisition notification, submits that the
petitioner admits that, even as of the date of his
representation as per Annexure-K, a road is
developed in the subject property, and this by itself is
a significant as it completely undermines the
petitioner's case that the possession has not been
taken. In addition, Sri Dhyan Chinnappa relies upon
the documents furnished to establish that the work
5 ILR 2005 KAR 5692
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contract is issued to a contractor for execution of the
layout work in different packages including Package -
VIII for the subject property.
11.1 Sri Dhyan Chinnappa relies upon the
decision of a Division Bench of this Court in
Krishnamurty vs Bangalore Development
Authority6 to assert that once it is demonstrated
that possession is taken and a Scheme is executed,
there cannot be a declaration that the acquisition
insofar as certain lands covered under the Scheme
stands lapsed. Sri Dhyan Chinnappa also submits
that the petitioner cannot succeed when it is
established that the authorities have visited the
subject property; that they have drawn panchnama
regarding delivery of possession, a recognized mode of
taking possession as held by the Hon'ble Supreme
Court in Banda Development Authority vs Motilal
ILR 1996 Karnataka 1258
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Agarwal7 and that the Scheme, subject to the Forest
Department's claim, is executed with formation of
layout followed by allotment of sites.
12. This Court, at the very outset, must
observe that the propositions put forth are rather
settled and as such there need be an elaborated
discussion except for observing that this Court must
examine, as indicated in framing the question for
consideration as aforesaid, which of these
propositions would be applicable in the
circumstances of the case. In the peculiarities of the
facts and circumstances of the case and the rival
submissions, this Court is of the considered view that
the question for consideration is:
Whether this Court, with the petitioner's
possession of the subject property being
undeniably jeopardized with the
proceedings under the Forest Act underway
and the other circumstances, can opine
[2011]5 SCC 394
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either that the 'Further Extension of
Banashankari VI Stage Scheme' stands
lapsed insofar as the subject property or
quash the impugned notifications.
13. Indeed, the petitioner can claim that he
must have an advantage of the interim order in the
earlier writ petition in WP No.53576/2003, the final
direction against dispossession given while disposing
of the aforesaid writ petition as also the benefit of
temporary injunction and the partial decree dated
20.10.2022 in O.S.No.1121/2015. However, this
Court is of the considered view that the merits of the
petitioner's case against the 'Further Extension of
Banashankari VI Stage Scheme' insofar as the subject
property cannot be confined to the consideration of
just these two circumstances or that the BDA also
relies upon the cyclostyled mahazar to support taking
of possession of the subject property in the year
2003.
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14. The interim order and the final direction
are in a series of writ petitions filed by different
persons and therefore these orders must be read
contextually and subject to the peculiarities of each
case. This Court has granted the interim order in
W.P.No.53576/2003 against dispossession of the
petitioner, and this culminates with the order dated
06.06.2006 with the general direction while disposing
of series of writ petitions with directions against
dispossession without a specific finding on whether
the petitioner was indeed in possession of the subject
property.
15. Crucially, the petitioner admits that a 80
Feet Road is formed in the subject property and the
adjacent lands in terms of the approved Scheme. This
would be a very significant circumstance, and this
circumstance will be significant for the fact that the
petitioner, who contends that he was in possession of
the subject property from the very beginning, does
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not place on record any document or circumstance to
demonstrate when or why or how he consented to
give up the extent utilized for the formation of road.
If indeed the petitioner was in possession of the
subject property, it is difficult to accept, especially
with the proceedings under the Forest Act, that the
petitioner would have consented for formation of a
road without any document or proceedings being
drawn in that regard.
16. There is a material at this point of time for
this Court to opine that the BDA, while forming the
undisputed 80 Feet Road in the subject property,
could have formed a layout and sites. The materials
that are considered to render this opinion are not just
the mahazar that is drawn or the execution of the
work as seen in the following sketch, but also the
primary documents such as payment of bills,
allotment of sites and sale deeds executed in favour
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of the private respondents and the applicants. The
sketch in this regard is as follows:
17. When the question whether the subject
property was a nursery or a garden land fell for
consideration by the BDA consequent to this Court's
order in WP No.53576/2003, the dispute over
whether the subject property is part of Turahalli
Minor Forest, a dispute commenced in the year 2006,
was pending consideration in WP No.89/2009. This
writ petition in WP No.89/2009 is disposed of by
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order dated 23.07.2012 requiring the Conservator of
Forests [the Appellate Authority] to conduct a joint
survey to ascertain whether the subject property is a
forest land. The Appellate Authority, following a
survey and this Court's order of remand as aforesaid
in WP No.89/2009, has heard the petitioner again,
and the Appellate Authority by the order dated
27.10.2017 has directed the petitioner to vacate the
encroachment holding that the subject property is a
forest land.
18. The petitioner has challenged the
Appellate Authority's order dated 27.10.2017 in WP
No.54268/2017, and this Writ Petition is disposed of
on 27.02.2019 quashing the order dated 27.10.2017
and directing the Appellate Authority to re-consider
the petitioner's grievance. After this Court's order
dated 27.02.2019 in WP No.54268/2017, yet another
joint survey is conducted on 22.07.2021 with the
petitioner, the Appellate Authority and the other
officials of the Forest Department participating in the
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proceedings. At this stage, this Court must refer to
the Google Satellite Image Print Out8. This image
must be considered, and is also considered.
19. The question whether the subject property
is a part of the forest or not is to be decided by the
Conservator of Forests and subject to such
8 The genuineness or the location of this Image is not
disputed.
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conclusion, the State Government will have to take
its decision on the BDA's Resolution dated
25.06.2007 to exclude the subject property from the
acquisition proceedings as also the affirmation
thereof by the De-notification Committee by its
Resolution dated 17.12.2008. The import of the
BDA's resolution, which is because of the
Government's request dated 26.12.2006 for exclusion
on the ground that it is a Forest, is limited to such
extent and this Court cannot declare that the Scheme
has lapsed or quash the acquisition foreclosing these
proceedings because of such resolution. The question
framed for consideration is answered accordingly.
In the light of the afore, the petition stands
dismissed and all the pending applications are
rejected.
Sd/-
JUDGE
SA/nv
