Karnataka High Court

Sri Prasad R Deshpande vs State Of Karnataka on 16 June, 2023

Bench: M.Nagaprasanna

                           1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 16TH DAY OF JUNE, 2023

                          BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

        WRIT PETITION No.23757 OF 2022 (GM - FOR)

                           C/W

         WRIT PETITION No.4814 OF 2023 (GM - FOR)

IN WRIT PETITION No.23757 OF 2022

BETWEEN:

1 . SRI PRASAD R. DESHPANDE
    S/O SRI R.V.DESHPANDE
    AGED ABOUT 49 YEARS
    R/O MANGIRISH, 36/37
    JAKKUR PLANTATION
    YELAHANKA
    BENGALURU - 560 063.

2 . SRI DHRUV R. DESHPANDE
    S/O MR.PRASAD R. DESHPANDE
    AGED ABOUT 22 YEARS
    R/O MANGIRISH, 36/37
    JAKKUR PLANTATION
    YELAHANKA
    BENGALURU - 560 063.
                                            ... PETITIONERS

(BY SRI K.SHASHIKIRAN SHETTY, SR.ADVOCATE FOR
    SMT.LATHA S.SHETTY., ADVOCATE)
                           2



AND:

1.   STATE OF KARNATAKA
     REPRESENTED BY SECRETARY
     DEPARTMENT OF FOREST
     VIDHANA SOUDHA
     AMBEDKAR VEEDHI
     BENGALURU - 560 001.

2.   ASSISTANT CONSERVATOR OF FOREST
     BANGALORE NORTH SUB DIVISION,
     BWSSB ROAD, 18TH CROSS,
     MALLESHWARAM
     BENGALURU - 560 055.
                                          ... RESPONDENTS

(BY SMT.SHWETHA KRISHNAPPA, AGA FOR RESPONDENTS)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE
DTD.10.11.2022 ISSUED BY THE R-2 UNDER THE KARNATAKA
FOREST MANUAL-FROM 22 RULE 66(6) AND (11) KARNATAKA
FOREST ACT 1963 RULE 64(A) ANNEXURE-A AND ETC.,


IN WRIT PETITION No.4814 OF 2023


BETWEEN:

RAGHUDHA ENTERPRISES
A PARTNERSHIP FIRM REGISTERED
AS PER THE INDIAN PARTNERSHIP ACT, 1932
HAVING ITS REGISTERED OFFICE ADDRESS AT
NO.372, NILAY, R.T.NAGAR MAIN ROAD,
R.T.NAGAR, BENGALURU - 560 032.
REPRESENTED BY ITS PARTNER
MR.PRASHANT R.DESHPANDE
S/O MR.R.V.DESHPANDE
                           3



AGED ABOUT 45 YEARS.
                                            ... PETITIONER

(BY SRI K.SHASHIKIRAN SHETTY, SR.ADVOCATE FOR
    SMT.LATHA S.SHETTY., ADVOCATE)


AND:

1.   STATE OF KARNATAKA
     REPRESENTED BY ITS SECRETARY
     DEPARTMENT OF FOREST
     VIDHANA SOUDHA
     AMBEDKAR VEEDHI
     BENGALURU - 560 001.

2.   ASSISTANT CONSERVATOR OF FOREST
     BANGALORE NORTH SUB DIVISION,
     BWSSB ROAD, 18TH CROSS,
     MALLESHWARAM
     BENGALURU - 560 055.

                                          ... RESPONDENTS

(BY SMT.SHWETHA KRISHNAPPA, AGA FOR RESPONDENTS)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTICE DT
21.01.2020 BEARING NO.SA A SA / BENVUVUV / AS.PRADESHA /
ENCROACHMENT / 2019-20 ISSUED BY THE R-2 TO THE
PREDECESSOR OF SCHEDULE PROPERTIES MR.SACHIN KAMAT AND
MUNIRANGAPPA, UNDER THE KARNATAKA FOREST MANUAL-FORM
22, RULE 66(6) AND (11), KARNATAKA FOREST ACT 1963 RULE
64(A), AND WITH ALLEGATIONS THAT THE HAS VIOLATED
PROVISIONS OF 24(G) (GG), 24(H), 73(D), 78, 81 AND 104 OF
KARNATAKA FOREST ACT 1963. (ANNX-A) AND ETC.,
                                4



     THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.06.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
                             ORDER

The petitioners before this Court in W.P.No.23757/2022,

seek the following prayer:

a. Issue a writ in the nature of certiorari or any other writ, order or direction quashing the notice dated 10.11.2022 bearing No.Sa A Sa / BenVuVuV / Aa.Pradesha / Encroachment/22-23 issued by the 2nd Respondent under the Karnataka Forest Manual - Form 22, Rule 66(6) and (11), Karnataka Forest Act 1963 Rule 64(A), (Annexure A).

b. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the Notice dated 14.02.2020 issued by the 2nd Respondent in No.Sa A Sa / BenVuVuV / Aa.Pradesha / Encroachment/2019-20 under the Karnataka Forest Manual - Form 22, Rule 66(6) and (11), Karnataka Forest Act 1963 Rule 64(A) (Annexure B).

c. Issue a writ in mandamus or any other appropriate writ, order or direction declaring that the impugned notices dated 10.11.2022 and 14.02.2020 are highly arbitrary, illegal and without authority of law Annexure A and B.

d. Grant such other orders that this Hon'ble Court may deem fit in the facts and circumstances of the present matter."

The petitioner in W.P.No.4814/2023, seek the following

prayer:

a. The Petitioner in the present writ petition are seeking for a writ in the nature of certiorari or any other writ, order or

direction quashing the notice dated 21.01.2020 bearing No.Sa A Sa / BenVuVuV / Aa.Pradesha / nd Encroachment/2019-20 issued by the 2 Respondent to the predecessor of Schedule Properties Mr. Sachin Kamat and Muniranagappa, under the Karnataka Forest Manual - Form 22, Rule 66(6) and (11), Karnataka Forest Act 1963 Rule 64(A), and with allegations that has violatedprovisions of 24(g), (gg), 24(h), 73(d), 78, 81 and 104 of Karnataka Forest Act 1963 (Annexure A).

b. The Petitioners have further sought for a writ in the nature of mandamus or any other appropriate writ, order or direction declaring that the impugned notices dated 21.1.2020 are highly arbitrary, illegal and without authority of law. The copy of the notice dated 21.10.2020 in No.Sa A Sa / BenVuVuV / Aa.Pradesha / Encroachment/2019-20 issued by the 2nd Respondent. (Annexure A).

c. Grant such other orders that this Hon'ble Court may deem fit in the facts and circumstances of the present matter."

2. Heard Sri K.Shashikiran Shetty, learned senior counsel

appearing for the petitioners and Smt. Shwetha Krishnappa,

learned Additional Government Advocate for respondents.

3. Brief facts that lead the petitioners to this Court in the

subject petition, as borne out from the pleadings, are as follows:-

The petitioners claim to be the owners of property bearing

Sy.No.1B Block 34, 36 and 37 measuring 2 acres 10 guntas situate

in Jakkur Plantation Village, Yelahanka Hobli, Bengaluru North

Taluk. The petitioners come in possession of the said land pursuant

to two deeds of gift executed in their favour - one on 16-08-2017

and the other on 21-03-2018. Just before execution of aforesaid

deeds of gift, the 2nd respondent addresses a communication to the

Tahsildar, Bengaluru North seeking mutation of revenue records of

the aforesaid lands along with other lands in favour of the Forest

Department. This comes to be rejected by the Tahsildar by issuing

an endorsement dated 16-06-2015, expressing his inability in terms

of the Rules to carry out such change of entries in the mutation

issued by the Tahsildar preferred an appeal before the Assistant

Commissioner under Section 136(2) of the Karnataka Land Revenue

Act, 1964 and seeks a direction as was sought before the Tahsildar.

The Assistant Commissioner while considering the appeal so filed by

the Forest Department, seeks a report from the Tahsildar by

conduct of an inquiry as to whether the land bearing Sy.Nos.1 to 4

of Jakkur Plantation is a forest land. The Tahsildar on receiving

directions from the Assistant Commissioner conducts an enquiry,

peruses records and submits his report on 17-12-2015 opining that

the lands belong to the Revenue Department, they had been

granted to various individuals by Government and the Forest

Department had no right or claim over the said lands. On perusal

of the said report, certain contemporaneous proceedings were

initiated by the Deputy Commissioner, Bangalore Rural District as

to whether the lands were revenue lands or forest lands. The same

report that was submitted to the Assistant Commissioner was

placed before the Deputy Commissioner and all the authorities

opined that the lands belong to the Revenue Department and were

granted to several persons long ago.

4. Things standing thus, the Assistant Commissioner issues a

notice under Section 136(2) of the Karnataka Land Revenue Act

directing appearance of the parties before him. On 18-03-2016,

the Forest Department files a revised appeal before the Assistant

Commissioner and respondent No.1 / State filed its objections

before the Assistant Commissioner in the proceedings initiated by

the Forest Department. It appears that Government of Karnataka

then constituted a High Level Committee consisting of several

members to look into the fact as to whether the Forest Department

had a claim over the subject land. Committee of 14 persons

appears to have held that the lands do not belong to the Forest

Department. The Assistant Commissioner who was hearing the

appeal filed by the Forest Department, rejected the claim of the

Forest Department holding that the lands belong to its Department.

It further held that the respondents i.e., the petitioners or the

erstwhile owners of the lands had produced title documents to show

that they are the owners of the property but the same was disputed

by the Forest Department.

5. The Assistant Commissioner opined that he cannot decide

the title over the land in question in a proceeding under Section

136(2) of the Karnataka Land Revenue Act. Therefore, he was of

the opinion that the Forest Department has to establish its title

before the competent Court of law. Despite the order passed by the

Assistant Commissioner, the 2nd respondent again issues a notice

dated 10-11-2022, invoking the provisions under Section 64 of the

Karnataka Forest Act, 1963. It is this notice that drives the

petitioners to this Court in the subject petition.

6. The learned senior counsel representing the petitioners

would vehemently contend that a report was drawn pursuant to the

direction of the Assistant Commissioner to the Tahsildar to conduct

inspection and submit his report. The report was submitted to the

effect that the lands did not belong to the Forest Department but

belong to the Revenue Department and had been granted to

various persons over the years. In a proceeding instituted by the

Forest Department before the Assistant Commissioner under

Section 136(2) of the Karnataka Land Revenue Act, it resulted in

the Assistant Commissioner holding that the lands did not belong to

the Forest Department. However, it was observed that it was open

to the Forest Department to claim title over the lands before the

competent Court of law. He would contend that issues of 50 to 70

years vintage are now sought to be re-agitated by the Forest

Department without there being any ground to do so.

7. The learned Additional Government Advocate representing

the first respondent - Forest Department would contend that what

is challenged is only a notice. The petitioners can appear before the

Assistant Conservator of Forest and answer the notice by producing

documents to demonstrate that the lands do not belong to the

Forrest Department, which may result in closure of proceedings

before the Forest Department as well. Instead of doing so, the

petitioners have rushed to this Court calling in question the said

notice. He would submit that the writ petitions have to be

dismissed as premature as the notices issued are not the one

without jurisdiction and the notices can be challenged before this

Court only on the ground that it suffers from want of jurisdiction

and no other ground. That is not available to the petitioners.

Therefore, the petitions should meet its dismissal.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and perused the material

on record.

9. The afore-narrated facts require certain reiteration. It is

the averment in the petitions that on 21-09-1949, the then

Government of Mysuru issues an order by virtue of which lands

measuring 177 acres and 28 guntas situated in Jakkur and

Allalasandra Plantations were released from the ambit of Forest

Department and handed over to the Revenue Department. It is

then the Revenue Department grants it to several persons. Several

proceedings then take place in the Revenue Department granting

lands to landless people, agriculturists and to several other persons

from 1949 to 1971. In the year 2002, when the working plan for

Bangalore Urban Forest Division was approved by the Government

of India, these lands were shown to be released from the Forest

Department and handed over to the Revenue Department. Long

after all these proceedings, the Department of Forest on

01-06-2015, addresses a communication to the Tahsildar to change

mutation entries of lands in favour of the Forest Department on the

ground that the lands where the properties of the petitioners situate

among others, were forest lands.

10. The Tahsildar appears to have rejected the claim of the

Forest Department to mutate the lands in favour of the Forest

Department. This leads the Forest Department to initiate

proceedings before the Assistant Commissioner in Revenue Appeal

No.122 of 2015-16 under Section 136(2) of the Karnataka Land

Revenue Act. The Assistant Commissioner directs the Tahsildar to

conduct inspection, verify the records and submit his report. The

Tahsildar in terms of the directions, conducts inspection, verifies

the records and holds that the lands did not belong to the Forest

Department, as they had been granted in favour of several persons.

The report of the Tahsildar insofar as it is germane reads as

follows:

".... .... ....

¥Àæ²ßvÀ d«ÄÃ£ÀÄ dPÀÆÌgÀÄ ¥ÁèAmÉÃµÀ£ï JAzÀÄ ºÉ¸Àj¸À®ànÖzÀÄÝ, F zÁR¯ÉUÀ¼À DzsÁgÀzÀ ªÉÄÃgÉUÉ 'CgÀtå ¥ÀæzÉÃ±À' JAzÀÄ ªÀVÃðPÀÈvÀªÁVgÀÄvÀÛzÉAiÉÄÃ? CxÀªÁ PÀAzÁAiÀÄ E¯ÁSÉUÉ ¸ÉÃjzÀ d«ÄÃ£ÀÄUÀ¼ÁVgÀÄvÀÛªÉAiÉÄÃ? JA§ÄzÀgÀ §UÉÎ F PÀbÉÃj ªÀÄvÀÄÛ EvÀgÉ PÀbÉÃjUÀ¼À°è ªÉÄÃ®ÌAqÀ ¸ÀªÉð £ÀA.1 jAzÀ 4 gÀ d«ÄÃ¤UÉ ¸ÀA§AzsÀ¥ÀlÖ zÁR¯ÉUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ ¥Àj²Ã°¸À¯ÁVgÀÄvÉÛ.

.... .... ....

F ºÀAvÀzÀ°è ®¨sÀå zÁR¯ÉUÀ¼ÀAvÉ CA¢£À «±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ f¯Éè gÀªÀgÀÄ vÀªÀÄä ¥ÀvÀæzÀ ¸ÀASÉå.J¯ï.J£ï.r3.103/74-75 ¢£ÁAPÀ:01.08.1974 gÀ°è ¸ÀàµÀÖªÁV S.No.1 of 'Government Kharab' Out of this extent of 325.08 A.Guntas has already been disposed of leaving a balance of 2.20 A.guntas which is now proposed for disposal. JAzÀÄ ªÀgÀ¢AiÀÄ£ÀÄß «¨sÁUÁ¢PÁjUÀ½UÉ ¤ÃrgÀÄvÁÛgÉ. (C£ÀÄ§AzsÀ-26)

CgÀtå E¯ÁSÉAiÀÄÄ 2002-03 jAzÀ 2011-12£ÉÃ ¸Á°UÉ ¨ÉAUÀ¼ÀÆgÀÄ «¨sÁVÃAiÀÄ PÀbÉÃj CgÀtå ªÀÄvÀÄÛ ¥Àj¸ÀgÀ E¯ÁSÉ, ¨sÁgÀvÀ ¸ÀPÁðgÀzÀ C£ÀÄªÀÄw ¥ÀvÀæ ¸ÀASÉå:F(C)A/11.6/182/WP/KAR, ¢£ÁAPÀ:29.08.2002 ºÁUÀÆ PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀPÁðj DzÉÃ±À ¸ÀASÉå:FEE 32 FAP 2002, ¢£ÁAPÀ:21.09.2002 gÀAvÉ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ CgÀtå «¨sÁUÀPÉÌ ¸ÀA§A¢üzÀAvÉ ºÉÆgÀr¹gÀÄªÀ PÁAiÀÄð AiÉÆÃd£ÉAiÀÄ ¥ÀÄl ¸ÀASÉå:155 gÀ°è £ÀªÀÄÆ¢¹gÀÄªÀ C£ÀÄ§AzsÀ-31 gÀ°è w½¹gÀÄªÀAvÉ, 1902-1966£ÉÃ ¸Á°£À°è ºÀ®ªÁgÀÄ ¸ÀPÁðj DzÉÃ±ÀUÀ¼À£ÀéAiÀÄ C¼Áî¼À¸ÀAzÀæ ªÀÄvÀÄÛ dPÀÆÌgÀÄ ¥ÁèAmÉÃµÀ£ï UÁæªÀÄªÀÅ ¸ÉÃjzÀAvÉ CgÀtå E¯ÁSÉUÉ ¸ÉÃjzÀ ¸ÀÄªÀiÁgÀÄ 4000 JPÀgÉUÀÆ «ÄV¯ÁzÀµÀÄÖ CgÀtå-¥ÀæzÉÃ±ÀªÀ£ÀÄß CgÀtå E¯ÁSÉ¬ÄAzÀ Disforest JAzÀÄ DzÉÃ±À ºÉÆgÀr¹gÀÄªÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ. ¸ÀzÀj PÁAiÀÄð AiÉÆÃd£ÉAiÀÄ°è C¼Áî¼À¸ÀAzÀæ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.1, 2, 3, 4PÉÌ ¸ÀA§A¢ü¹zÀ Disforest ªÀiÁrgÀÄªÀ DzÉÃ±ÀzÀ «ªÀgÀ £ÀªÀÄÆ¢gÀÄªÀÅzÀÄ PÀAqÀÄ§gÀÄvÀÛzÉ (C£ÀÄ§AzsÀ-27)

1) A.F.2269-72 FL-47-49-2 dated:21.09.1949 gÀ°è 113.00 JPÀgÉ

2) A.F.2269-72 FL-47-49-2 dated:21.09.1949 gÀ°è 10.00 JPÀgÉ

3) A.F.12207-9 FL-1-55-17 dated:01.03.1956. gÀ°è 35.12.00 J / UÀÄ

¨ÉAUÀ¼Æ À gÀÄ GvÀÛgÀ (C¥ÀgÀ) vÁ®ÆèPÀÄ, AiÀÄ®ºÀAPÀ ºÉÆÃ§½, dPÀÆÌgÄÀ ¥ÁèAmÉÃµÀ£ï ¸ÀªÉð £ÀA.1, 2, 3, 4 gÀ°è£À d«ÄÃ£ÀÄ CgÀtå ¥ÀæzÉÃ±À JAzÀÄ ¥ÁægÀA©üPÀªÁV WÉÆÃ¶¸À®ànÖzÀÝgÀÆ ¸ÀºÁ PÁ®PÀæªÉÄÃt CgÀtå E¯ÁSÉ¬ÄAzÀ PÀAzÁAiÀÄ E¯ÁSÉUÉ ªÀUÁðªÀuÉAiÀiÁV ¸ÀPÁðj RgÁ§Ä JAzÀÄ ªÀVÃðPÀÈvÀªÁV PÀAzÁAiÀÄ E¯ÁSÉAiÀÄ ªÀw¬ÄAzÀ ºÀ®ªÁgÀÄ ªÀåQÛUÀ½UÉ ¨sÀÆ ªÀÄAdÆgÁwAiÀiÁV «¯ÉÃ DVgÀÄªÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ. ¸ÀzÀj d«ÄÃ£ÀÄUÀ¼ÀÄ FUÁUÀ¯ÉÃ ¨sÁUÀ±À: F ¨sÀÆ¥ÀjªÀvÀð£ÉAiÀiÁVzÀÄÝ ªÀ¸Àw ¥ÀæzÉÃ±ÀªÁV C©üªÀÈ¢Ý ºÉÆA¢zÀÄÝ §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀÄºÁ£ÀUÀgÀ ¥Á°PÉ¬ÄAzÀ SÁvÉUÀ¼ÀÆ ¸ÀºÁ DVgÀÄªÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ.

¥Àæ¸ÁÛ¦vÀ dPÀÆÌgÀÄ ¥ÁèAmÉÃµÀ£ï ¸ÀªÉð £ÀA.1, 2, 3 ªÀÄvÀÄÛ 4 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ªÀiÁ£Àå G¥À«¨sÁUÁ¢üPÁjUÀ¼ÀªÀgÀ £ÁåAiÀiÁ®AiÀÄzÀ°è ¥ÀæPÀgÀt zÁR¯ÁVgÀÄvÀÛzÉ. F ¥ÀæPÀgÀtzÀ°è£À J¯Áè ¥ÀæwªÁ¢UÀ½UÉ £ÉÆÃnÃ¸ï ¤Ãr, ¥ÀæwªÁ¢UÀ¼ÀÄ ºÉÆA¢gÀÄªÀ d«ÄÃ¤£À ªÀÄÆ® ªÀÄAdÆj zÁR¯É, ºÀPÀÄÌ zÁR¯É, PÀæAiÀÄ¥ÀvÀæ,, ¨sÀÆ¥ÀjªÀvÀð£É DzÉÃ±À ºÁUÀÆ ºÀPÀÄÌ ¥Áæ¥ÀÛªÁzÀ §UÉÎ J¯Áè zÁR¯ÉUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ ªÀiÁ£Àå G¥À«¨sÁUÁ¢üPÁjUÀ¼ÀÄ PÀÆ®APÀÄµÀªÁzÀ «ZÁgÀuÉ £ÀqÉ¹ ¤AiÀÄªÀiÁ£ÀÄ¸ÁgÀ CAwªÀÄ DzÉÃ±À ºÉÆgÀr¸À¨ÉÃPÁVgÀÄvÀÛzÉ.

ªÉÄÃ®ÌAqÀ CA±ÀUÀ¼À£ÀÄß ¥Àæ¸ÁÛ¦vÀ dPÀÆÌgÀÄ ¥ÁèAmÉÃµÀ£ï ¸ÀªÉð £ÀA.1, 2, 3, 4 gÀ d«ÄÃ£ÀÄUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ ®¨sÀå«gÀÄªÀ zÁR¯ÉUÀ¼ÀÄ ºÁUÀÆ vÁ®ÆèPÀÄ ªÉÆÃftÂzÁgÀgÀÄ vÀAiÀiÁj¹gÀÄªÀ £ÀPÉëAiÀÄ£ÀÄß ®UÀwÛ¹, ªÁ¸ÀÛªÁA±ÀzÀ ªÀgÀ¢AiÀÄ£ÀÄß vÀªÀÄä CªÀUÁºÀ£ÉUÉ ¸À°è¹zÉ."

(Emphasis added)

During the pendency of the proceedings before the Assistant

Commissioner, in the light of the dispute still pending between the

parties i.e., the Forest Department and the Revenue Department, a

High Level Committee was constituted to examine encroachment of

forest land in Bangalore Urban District. The Committee consisted of

14 members. The Constitution of Committee is as follows:

"Sl.No. Name & Designation

1 Sri Arvind Jadhav, IAS Chief Secretary to Government of Karnataka

2 Smt Latha Krishna Rau, IAS ACS & Development Commissioner, Government of Karnataka 3 Sri Mahendra Jain, IAS Additional Chief Secretary, FEE, Government of Karnataka 4 Sri Vinay Luthra, IFS Principal Chief Conservator of Forests (Head of Forest Force) 5 Sri B.Basavaraju, Principal Secretary Revenue Department 6 Sri T.M.Jayanthi, IAS Regional Commissioner, Bangalore 7 Sri Vijaykumar Gogi, IFS Secretary (Forest) 8 Sri Hari Kumar Jha, IFS Addl. Principal Chief Conservator of Forests (Land Records) 9 Ms.Meenakshi Negi, IFS Addl. Principal Chief Conservator of Forests (Working Plan) 10 Ms.Dipika, IFS Deputy Conservator of Forests, Urban Division 11 Sri Jaiprakash, Joint Director of Land Records, Bangalore 12 Representative of BDA, Bangalore

13 Sri Sudharshan, For Commissioner, BBMP, Bangalore 14 Director, Karnataka Archives Department, Bangalore"

The Forest Department, right from the Secretary to the

Government; to the Deputy Conservator of Forest, was part of the

Committee. The findings of the Committee insofar as it comprises of

the subject lands are as follows:

"2. Sub-Committee for Land Records.

Comprises of four members under the chairpersonship of principal Secretary, Revenue Department, with Director, Archives Bengaluru as the Convener and has the mandate for tracing records pertaining to the disputed forest lands in Bengaluru Urban district.

The principal Secretary, Revenue stated that the meeting of the sub-committee was held on 17th March 2016.

The CS asked whether the subcommittee was able to establish as to how the land in Jakkur-Allalsandra came into the possession of its current occupants. In this context it was pointed out that the Sub-Committee had considered the report submitted by the Deputy Commissioner, Bengaluru to the Principal Secretary, Revenue Department vide letter no.Dgï.Dgï.n.(J£ï.J):¹Dgï/36/2015-16 dated 23/12/2015 which gives a detailed account of the land in Jakkur-Allalsandra and how the land came to be in the possession of the current occupants. The report cites corroborative evidence of the forest land having been de-notified. This is done by citing old file notings and other records, like grant registers, etc. a copy of the report is placed at Annexure - II.

An old map of the Jakkur Allalsandra plantation showing the dis-afforested area was produced before the HLC by the Forest Department and is placed at annexure - III."

(Emphasis added)

As observed hereinabove, the Committee consisted of the Forest

Department as its member as well. After the findings of the

Committee, the Forest Department pursued the matter before the

Assistant Commissioner in the aforesaid proceedings under Section

136(2) of the Karnataka Land Revenue Act. The Assistant

Commissioner in terms of his order dated 17-03-2017, after perusal

of records and report of the Tahsildar, has held as follows:

"In the light of the above Judgments and reasons stated above, I am of the view that the appellant has failed to explain the Inordinate delay of more than 60 years in filing the appeal. Hence, the appeal is deserved to be dismissed on the ground of limitation only.

The contention of the appellant is that the land in question is a forest land and by virtue of Section 30 of the Mysore Forest Act it is a statutory requirement for publication of notification in the official gazettes for disforesting/derserving/denotifying any area in the reserved forest. Further, after the commencement of Karnataka Forest Act 1963, a notification under Section 28 of the said Act is required for disforesting any area in the reserved forest. The appellant states that there is no official gazette notification either under Section 30 of the Mysore Forest Act or Section 28 of the Karnataka Forest Act 1963 published in the official gazette declaring that the said Jakkur-Allalasandra reserve forest or part thereof shall cease tobe a reserve forest. Hence the appellant contends that the current legal status of the entire area of 177 acre 28 guntas is reserved forest under the Karnataka Forest Act 1963.

Per contra, the respondents contended that the Government is empowered to grant forest land and the grant is made under No.AF2269 dated 21.09.1949. Further they contended that exercising its power under Section 30 of the Mysore Forest Act 1900. The Government of Mysore by Notification dated 21.09.1949 released the forest land to an extent of 113 acres 32 guntas from the Jakkur to the revenue department. Thereafter 2 more notifications dated 28.1.1953 and 01.03.1956 came tobe issued by the Government of

Mysore releasing another extent of 45 acres 12 guntas of forest land to the Revenue Department. Hence, the grants made therein are legal. The consequence of which is disforesatation of the land which the appellant is claiming. Further, the working plan of the Bangalore Urban Forest approved by the Government of India and Government of Karnataka are prima facie and conclusive evidence that Jakkur and Allalasandra village is not forest land and has been disforested and handed over to the revenue department. Further, the High Level Committee constituted by the Government of Karnataka headed by the Chief Secretary, State of Karnataka and Additional Principal Chief Conservator of Forest as its member have submitted the report to the government in the month of December 2015 specifically recording that the land in question are disforested and no forest land is in existence in Jakkur Allalasandra Village.

The Respondents have produced title documents to show that they are the owners of the property but the same is disputed by the appellant, Department of Forest. However, this authority cannot decide the title over the land in question in the proceedings under 136(2) of the Karnataka Land Revenue Act. Therefore I am of the opinion that the appellant has to establish their title before the competent court of law.

Hence I proceed to pass the following:

ORDER

The application for condonation of delay is hereby dismissed consequently for the reasons stated above the appeal is hereby dismissed."

(Emphasis added)

The Assistant Commissioner observes that the Forest Department

has failed to explain the inordinate delay of more than 60 years in

filing the appeal and further observes that the respondents/land

owners have produced all title documents to show that they are the

owners of the property, but it was disputed by the Forest

Department. Therefore, the Assistant Commissioner holds that title

cannot be decided in a proceeding under Section 136(2) of the

Karnataka Land Revenue Act and the Forest Department will have

to approach a competent Court of law. The said finding has become

final as the Forest Department has not challenged the same before

any competent judicial/quash judicial fora. Having accepted the

aforesaid findings, the Forest Department is now wanting to re-

agitate the very same issue by a different route by initiating

proceedings under Rule 64A of the Karnataka Forest Act, 1963,

holding that there is violation of several provisions of the Karnataka

Forest Act.

11. Though the petition is filed challenging only the notices in

both the petitions, the said notices itself suffer from want of

jurisdiction on the peculiar facts that the Forest Department has

suffered an order under Section 136(2) Karnataka Land Revenue

Act, where it is held that land owners have produced adequate

documents to demonstrate that they are the owners of the property

and the Forest Department has failed to convince the Assistant

Commissioner. Further, the Assistant Commissioner reserves

liberty to the Forest Department to initiate proceedings

appropriately seeking title over the property before the competent

Court of law. The Forest Department does not do so and issues the

impugned notices. It, therefore, becomes an act which is without

jurisdiction.

12. This Court is not rendering the finding that the Forest

Department does not have power to issue the notice and initiate

proceedings under Rule 64 of the Rules. The Forest Department is

well within its powers. But, in the peculiar fact that the findings of

the High Level Committee, in which the Forest Department was one

of the member, on 31-03-2016, held that it was resolved that the

lands do not belong to the Forest Department and since the

Department suffered an order at the hands of the Assistant

Commissioner, the impugned notices become one without

jurisdiction. Therefore, the writ petitions are entertainable

notwithstanding the fact that it challenges only the notices and the

notices require to be obliterated reserving liberty to the Forest

Department to demonstrate its title over the land before a

competent Court of law as is observed by the Assistant

Commissioner, as afore-quoted.

13. For the foresaid reasons, I pass the following:

ORDER

(i) Writ Petition is allowed.

(ii) The notices dated 10.11.2022 and 14.02.2020 issued by the 2nd respondent stand quashed.

(iii) The Forest Department is at liberty to initiate such proceedings in accordance with law to establish its title over the property as observed by the Assistant Commissioner in his order dated 17th March, 2017 before any Court of law.

WRIT PETITION NO.4814 OF 2023

14. The petitioner in the subject petition is a company owned

by the 1st petitioner in the companion petition viz., Writ Petition

No.23757 of 2022. What is called in question in the subject petition

is a notice issued upon the company on 21-01-2020 and upon

individuals in the companion petition. The notice in the subject

petition is also the one invoking or initiating proceedings under Rule

64(a) of the Karnataka Forest Rules alleging identical violations of

the Act. The facts and the findings rendered in Writ Petition

No.23757 of 2022 would become applicable to the facts of the case

at hand as they are identical. Therefore, for the reasons rendered

in the companion petition, the subject petition deserves to succeed.

Hence, the following:

ORDER

(i) Writ Petition is allowed.

(ii) The notice dated 21-01-2020 issued by the 2nd respondent stands quashed.

(iii) The Forest Department is at liberty to initiate such proceedings in accordance with law to establish its title over the property as observed by the Assistant Commissioner in his order dated 17th March, 2017 before any Court of law.

Pending interlocutory application if any, is disposed as a

consequence.

Sd/-

JUDGE nvj