1/7 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION NOS.30916 & 32358/2017 (GM-FOR) BETWEEN:
1. Mrs.Jacintha.S.Kumaraswamy, Wife of late M.M.Kumaraswamy, Aged about 65 years, 2. Mr.Surendra Kumaraswamy, Son of late M M Kumaraswamy Aged about 39 years Both are residing at No.A301, Temple Tree Apartment Kanakapura Road, Jaraganahalli, Bengaluru-560 078. ... Petitioners (By Sri. Haneef.M.H., Advocate) AND The State of Karnataka Represented by its Secretary, Department of Forest, Vidhana Soudha, Bengaluru-560 001. ... Respondent (By Sri. Shivaprabhu.S. Hiremath, AGA) These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned notice dtd:30.05.2017 issued by the Assistant Conservator of Forest, South Division, Bengaluru as illegal and unsustainable in law (Annexure-Q) and etc., These Writ Petitions coming on for Orders this day, the Court made the following:-
ORDER Mr.Haneef.M.H, Adv. for Petitioners Mrs.Shivaprabhu.S. Hiremath, AGA for Respondent The petitioners have filed these writ petitions with the following prayers:-
a) “Issue a Writ in the nature of Certiorari to quash the impugned Notice No.ACFS/BMRC/UKM/65/2017-18 dated 30.05.2017 issued by the Assistant Conservator of Forest, South Division, Bengaluru, as illegal and unsustainable in law (Annexure-Q).
b) Issue a direction to the respondent not to change the nature of the properties as mentioned above or to interfere with the physical possession of the Petitioners over the properties as mentioned above either by committing trespass or dispossessing the Petitioners from the properties as mentioned above, and c) Grant such other and further reliefs as this Hon’ble Court as this Hon’ble Court deems fit and proper under the circumstances of this case, in the interest of justice and equity.”
2. The petitioners seem to be aggrieved by the notice issued by the respondent – Assistant Conservator of Forest, Bengaluru on 30.05.2017 vide Annexure-Q calling upon the petitioners to show cause and participate in the proceedings, as according to the respondent Forest Authority, the petitioners were in illegal possession of 7.30 acres of Sy.No.37 of notified of Sunkadakatte Forest.
3. The petitioners appear to have given their objections to the said notice under Section 64 (a) of the Karnataka Forest Act, 1963 on 07.06.2017. However, without any decision being rendered by the said respondent – Assistant Conservator of Forest (South Sub-Division), Bengaluru, after such statement of objections filed by the petitioners and deciding the notice at Annexure-Q dated 30.05.2017, the present petitions before this Court are considered pre-mature.
4. The learned counsel for respondent, Forest Department has pointed out that the present petitioners are in illegal possession of Sy.No.37 whereas documents relating to her title, produced with these petitions as well as before the said Forest Authority shows that she is in possession of Sy.No.42 in the Nettigere village. He also submitted that, he does not have the instruction about the fact as to whether the said respondent – Forest Authority has by now passed any order after giving an opportunity of hearing to the petitioners or not in pursuance of the Annexure Q notice dated 30.05.2017.
5. On the contrary, learned counsel for petitioners submit that not only the said notice dated 30.05.2017 was followed by another such similar notice on 10.07.2017 but without deciding the same, the respondent – Forest authorities have tried to take forcible possession of the petitioners land in question.
6. Having heard the learned counsel for the parties, this Court is of the opinion that filing of the petitions under Article 226 and 227 of Constitution of India at this stage is premature. Before the respondent Forest Authority decides the notice after hearing the objections raised by the petitioners, this Court cannot express any opinion on the merits of the contentions raised by both the sides. Moreover, the question of fact like whether the petitioners possession is in Sy.No.37 in the notified Sunkadakatte forest or in Sy.No.42 of Nettigere village are definitely questions of fact which deserve to be determined either by the competent Civil Court or by the respondent Forest Officer himself in the first instance, by hearing the objections raised by the petitioners and taking the relevant evidence on record.
7. It is needless to say that if the petitioners are aggrieved by any order passed by the respondent Forest authority, then the remedy to be availed by the petitioners in such instance would be a Civil suit in the competent Civil Court where such question of facts can be determined on the basis of relevant and cogent evidence led by both the parties.
8. It is equally true that without the question of fact determined by the respondent authority himself, the respondent cannot forcibly take the possession of the land of the petitioners.
9. Therefore, the petitions are disposed of with the liberty and direction to the petitioners to approach the respondent – Assistant Conservator of Forest, South Division, Bengaluru, in the first instance on 08.08.2017 and a period of four weeks is allowed to said respondent to decide the questions of fact and the objections raised by the petitioners after giving a reasonable opportunity to petitioners. With these observations, the said petitions are disposed of. No costs.
Sd/- JUDGE MH/-
C:NS