Karnataka High Court
Keshu S/O Omu Marathi vs The State Of Karnataka on 29 July, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
-1-
NC: 2024:KHC-D:10669
WP No. 103980 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
WRIT PETITION NO. 103980 OF 2014 (GM-FOR)
BETWEEN:
SHRI KESHU S/O. OMU MARATHI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. DEVIMANE,
TQ: SIRSI, DIST: UTTAR KANNADA.
...PETITIONER
(BY SRI. SABEEL AHMED, ADV. FOR SRI. A.S. PATIL, ADV.)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY PRINCIPAL SECRETARY TO FOREST,
ECOLOGY AND ENVIRONMENT DEPARTMENT,
BANGALORE.
2. THE DEPUTY COMMISSIONER,
UTTAR KANNADA DISTRICT,
KARWAR.
3. CONSERVATOR OF FORESTS &
THE APPELLATE AUTHORITY,
SAROJA CANARA CIRCLE, SIRSI,
HANGARAKI
DIST: UTTAR KANNADA.
Location: HIGH
COURT OF
KARANTAKA
DHARWAD
4. THE DEPUTY CONSERVATOR OF FORESTS,
BENCH SIRSI DIVISION, SIRSI,
DIST: UTTAR KANNADA.
5. THE ASSISTANT CONSERVATOR OF FOREST
& ENQUIRY OFFICER,
JANMANE SUB DIVISION,
SIRSI, DIST: UTTAR KANNADA.
6. THE RANGE FOREST OFFICER,
JANMANE RANGE,
TQ: SIRSI, DIST: UTTAR KANNADA.
...RESPONDENTS
(BY SRI. ASHOK T. KATTIMANI, AGA)
-2-
NC: 2024:KHC-D:10669
WP No. 103980 of 2014
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE OF WRIT OF
CERTIORARI OR ANY OTHER ORDER OR DIRECTION QUASHING THE
IMPUGNED ORDER DATED 28-09-2012 PASSED BY THE
RESPONDENT NO.3 IN APPEAL NO.75/2000-01 AS PER ANNEXURE-H
CONFIRMING THE IMPUGNED ORDER DATED 26-12-2000 PASSED BY
THE RESPONDENT NO.5 IN NO.ATIKRAMAN/JNM/VIVA-70/99-00 AS
PER ANNEXURE-G.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P. SANDESH
ORAL ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
Heard the petitioner's counsel and the learned
Additional Government Advocate for the respondents.
2. The petitioner while seeking the relief of writ of
certiorari quashing Annexure-H passed by respondent
No.3 dated 28.09.2012 confirming the impugned order
dated 26.12.2000 passed by respondent No.5 as per
Annexure-G, would contend that the petitioner is in
possession of an area measuring to an extent of 1 acre 23
guntas situated in Sy.No.24 of Devimane village of Sirsi
taluk from 1976. He contended that he has planted betel
nut, banana, coconut trees over the said land. The
NC: 2024:KHC-D:10669
petitioner has also constructed a house over the said land
and he is residing along with his family members and
regularly paying the property assessment in respect of the
said house to the concerned Gram Panchayat. It is also his
contention that the Tahasildar, Sirsi issued a possession
letter to the petitioner in respect of the house constructed
over the land in question on 19.09.1992. It is also his
contention that respondent No.2 regularized unauthorized
occupation of encroachment of forest land in case of
similarly situated persons on 22.07.1998. It is also
contended that based on the report submitted by
respondent No.5, criminal case was registered against this
petitioner for the forest offences and also under Sections
427 and 428 of IPC. Respondent No.5 also issued notice to
the petitioner on 29.09.2000 and he appeared and given
reply stating that he is in possession of the land from 1976
and has constructed a house and also grown agricultural
crops. However, respondent No.5 without appreciating the
legal contentions raised by the petitioner and by
misinterpreting the provisions of the Act, has passed the
NC: 2024:KHC-D:10669
impugned order directing the concerned authorities to
evict the petitioner from the land in question and take
possession of the same in favour of the Department vide
order dated 26.12.2000.
3. The petitioner aggrieved by the said order, filed
an appeal before respondent No.2 under Section 64-A of
the Karnataka Forest Act, 1963 (hereinafter referred to as
'Act'). It is also contended that he was acquitted in
criminal proceedings and respondent No.2 has also
dismissed the appeal filed by him confirming the order
passed by respondent No.5 on 28.09.2012. Hence, the
orders passed by respondents No.2 and 5 at Annexures-H
and G respectively are challenged in this writ petition.
4. The main contention of the counsel for the
petitioner is that the petitioner is in possession of land
from 1976 and there is no any notification issued by the
Government by declaring the said land as reserved forest
area. He would also vehemently contend that both
respondents No.2 and 5 without any authority of law,
NC: 2024:KHC-D:10669
committed an error in passing such orders. When the
same is not declared as reserved forest area, the
authorities have failed to exercise the powers as
contemplated under Section 64-A of the Act and both
respondents No.2 and 5 have failed to take note of the
fact that the land was in possession from 1976. Further,
respondent No.2 has committed an error in relaying upon
the Government Order dated 05.05.1977 which specifies
that if any person is in unauthorized occupation and
encroached any portion of forest area after 27.04.1978 are
liable to be evicted. It is contended that in the present
case, the petitioner is in occupation of the area in question
since from 1976 and the Government Order dated
05.05.1977 relied upon by respondent No.2 is not
applicable to the case of the petitioner.
5. He also brought to notice of this Court the RTC
extract which is produced as Annexure-A which discloses
that the petitioner is in possession of the land from 1976.
He also brought to notice Annexure-B and contends that in
NC: 2024:KHC-D:10669
the year 1981 also, the RTC stands in his name. He also
brought to notice of this Court Annexure-C wherein
recommendation was made with regard to persons who
are in unauthorized occupation, patta ought to have been
issued. The counsel also brought to notice of this Court
Annexure-C1, wherein proceedings of the Government
were initiated and would vehemently contend that in terms
of Annexure-C1, 3,000 acres of land was released from
deemed forest including the Sy.No.11 so also Sy.No.24 of
Devimane village. He places reliance on Annexure-D,
possession certificate issued by the Tahasildar and
Annexure-E, the notice issued by the respondent in
respect of Sy.No.24 and the order passed by the
respondent as per Annexure-G as also Annexure-H the
order dismissing the appeal filed by the petitioner. He has
also produced the order of acquittal passed in
C.C.No.3910/2008.
6. Per contra, learned Additional Government
Advocate appearing for the State would vehemently
NC: 2024:KHC-D:10669
contend in the statement of objection that the forest land
in respect of Sy.No.24 of Devimane village is clearly a
reserved forest area. The said survey number is declared
as reserved forest area under the British Government and
notified in Official Gazette dated 11.05.1899 as per
Annexure-R1. He also submits that as per Section 23 of
the Act, reserved forests constituted previous to passing of
the Act under Indian Forest Act shall be a reserved forest.
After the enactment of Karnataka Forest Act, 1963, these
notified areas have not been changed. So the questioned
area in Sy.No.24 of Devimane village still remains as
reserved forest area and no notification for denotifying the
same has been issued and the same continues and
remains as reserved forest area.
7. He would also submit that the petitioner
encroached Sy.No.24 of Devimane village and spot visit
was made and FIR was registered as per Annexure-R2
against the petitioner herein. Village map is also produced
and the properties are also identified as per Annexure-R3.
NC: 2024:KHC-D:10669
A report was also given stating that it was encroached
reserved forest as per Annexure-R4. The list of standing
trees has also been prepared as per Annexure-R5.
Petitioner has not produced any relevant documents
before respondent No.2 and 5 except RTC. Now in the RTC
at column No.12, the name of the Government has been
mentioned.
8. He would further contend that the petitioner
has entered the reserved forest area without any sanction
and committed an offence under Section 24(g)(h) of the
Act. He also contends that the notice was issued and
sufficient opportunity was given to the petitioner and
despite the same, he failed to produce any document
showing that he has encroached the said reserved forest
area before 1976. He also contends that the petitioner has
no right on Sy.No.24 to an extent of 1 acre 23 guntas. The
encroached area i.e. Sy.No.24 of Devimane village has
been surveyed and confirmed that the same is part of
reserved forest area. By Government order dated
NC: 2024:KHC-D:10669
05.05.1997, there is no encroachment, respondent No.5
has to evict the same under Section 64-A of the Act and it
is mandatory for him to do so. Therefore, he has issued a
notice to the petitioner. He also contends that the Revenue
Department has no authority to issue any possession
certificate to the petitioner. Still, column No.12 of the
revenue entries clearly disclose the name of the
Government and hence it is mandatory for the revenue
officials to obtain prior sanction of the Central Government
under the Forest Conservation Act, 1980 before issuance
of possession certificate.
9. He would also vehemently contend that the
judgment of the High Court in ILR 2002 KAR 5265 is very
clear that reserved forest land cannot be used for any
other purposes. In view of notifying the said land long
back as reserved forest area, the orders passed by
respondents No.2 and 5 cannot be quashed.
10. Having heard the counsel for the petitioner and
learned AGA for the respondents, the main contention of
- 10 -
NC: 2024:KHC-D:10669
the petitioner's counsel is that the petitioner is in
possession of the land from 1976. Counsel for the
petitioner brought to notice of this Court that similarly
placed persons got an order regularizing their
unauthorized occupation vide order dated 22.07.1998 at
Annexure-C.
11. Having considered the contentions of the
petitioner's counsel referring the document at Annexure-
C1, no doubt the Government proceedings dated
16.04.1969 is very clear regarding releasing of 3,000
acres of forest land including Sy.No.24 and also Sy.No.11
of Devimane village. The property is situated in Devimane
village is also not in dispute. No doubt, the learned AGA
for the State also relies upon the earlier document at
Ex.R.1 dated 11.05.1899 wherein Sy.No.11 of Devimane
village so also Sy.No.24 are included. When the
Government proceedings in terms of Annexure-C1 is clear
vide order dated 16.04.1969 releasing some of the
properties including Sy.Nos.11 and 24 and learned AGA for
- 11 -
NC: 2024:KHC-D:10669
the State does not dispute Annexure-C1 regarding
releasing of some survey numbers that too in the year
1969, respondents No.2 and 5 ought to have taken note of
the said Government order and instead they rely upon
Annexure-R6 dated 05.05.1997. Learned AGA for the
State also brought to notice of this Court para Nos.4 and 8
of Annexure-R6, wherein no doubt there is a direction that
Government in revenue department shall submit district
wise monthly reports regarding forest area surveyed,
demarcated and regularizing in favour of encroachment to
the original Chief Conservator of Forest, Government of
India situated at Bengaluru, under a copy to the Principal
Secretary to Government, Forest, Ecology and
Environment Department and Principal Chief Conservator
of Forests in Karnataka, Bengaluru on or before 10th of the
succeeding month.
12. While passing the orders by respondents No.2
and 5, they have not taken note of the Annexure-C1
wherein a discussion was made that committee consisting
- 12 -
NC: 2024:KHC-D:10669
of the Deputy Commissioner, North Kanara District, the
Divisional Forest Officers, concerned and a representative
of the coffee Board was constituted for selecting suitable
blocks of forest lands total 3,000 acres for coffee
cultivation in North Kanara District. In the Government
Order dated 23.07.1968 read above, the work relating to
the submission of proposals to release one lakh acres of
forest lands in North Kanara District for cultivation was
entrusted to the High Power Committee constituted in
Government Order No.AFD 240 FCL 67 dated 19.11.1967.
A reference is also made that the committee constituted in
the Government order dated 17.04.1968 read above has
recommended release of 3,013 acres of forest land for
coffee cultivation. The High Power Committee has
recommended release of 17,208 acres 17 guntas of forest
land for cultivation purposes.
13. When such an order has been passed and also
details discloses the order dated 16.04.1969 wherein the
survey number is also mentioned, the same ought to have
- 13 -
NC: 2024:KHC-D:10669
been taken note of by respondents No.2 and 5 and the
same has not been done. When such being the material on
record, I am of the opinion that respondents No.2 and 5
have committed an error in passing such orders and hence
Annexures-G and H require to be quashed.
14. Counsel also brought to notice of this Court that
in similarly placed circumstances, the regularization has
been made in respect of some of the lands as per
Annexure-C dated 22.07.1998 wherein also a reference
was made that prior to 27.04.1978 if any persons have
encroached and are cultivating the same, they have been
notified of unauthorized occupation. When such being the
material available on record, the very contention of the
learned AGA appearing for the respondent-State cannot be
accepted.
15. In view of the discussions made above, I pass
the following:
- 14 -
NC: 2024:KHC-D:10669
ORDER
The writ petition is allowed.
Annexures-G and H are quashed as sought in the writ
petition.
Sd/-
(H.P.SANDESH)
JUDGE
SH
