IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA W.P.NO.47701 OF 2014 (GM-FOR) BETWEEN MRS. JEANNE PINTO W/O LATE WILFRED PINTO AGED ABOUT 66 YEARS COFFEE PLANTER, NILGIRI ESTATE BASARIKATTE POST, KOPPA TALUK CHICKMAGALUR DISTRICT-577126 ALSO RESIDING AT:
EXCELSIOR, UPPER BENDORE MANGALORE-575002 REPRESENTED BY HER GPA HOLDER MR IVOR REGO S/O W H REGO AGED ABOUT 48 YEARS RESIDING AT SUSAN BENDOREWELL MANGALORE-575002 (GPA HOLDER – IVOR REGO) (By Sri.CYRIL PRASAD PAIS – ADVOCATE) .. PETITIONER AND 1. THE CHIEF CONSERVATOR OF FORESTS & THE APPELLATE AUTHORITY CHICKMAGALUR CIRCLE CHICKMAGALUR-577101 2. THE DEPUTY CONSERVATOR OF FORESTS KOPPA DIVISION CHICKMAGALUR DISTRICT-577126 3. THE RANGE FORESTS OFFICER KOPPA RANGE, KOPPA CHICKMAGALUR DISTRICT – 577126 .. RESPONDENTS (By Smt : RAFEEUNISA – HCGP) THIS WP IS FILED UNDER ATRICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 06.07.2014 PASSED BY THE CHIEF CONSERVATOR OF FORESTS, CHIKKAMAGALUR CIRCLE, THE R-1 HEREIN IN APPEAL NO.1/2008-09 BY WHICH THE ORDER DTD 12.11.2008 WAS CONFIRMED AND CONSEQUENTLY SET ASIDE THE PROCEEDINGS INITIATED BY THE R-2 UNDER SECTION 64(A) OF THE KARNATAKA FOREST ACT VIDE ANN- A RESPECTIVELY THIS WP COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Against the concurrent finding of fact recorded by the authorities below under the provisions of the Karnataka Forest Act, 1963 directing the petitioner to evict from the land in question, the petitioner is before this Court for a writ of certiorari to quash the order dated 1.7.2014 passed by the Chief Conservator of Forests, Chikkamagalur Circle, the 1st respondent herein in appeal No.1/2008-09 by which the order dated 12.11.2008 in No.B4(DFT)/64(A)CR-73/2007-08 was confirmed and consequently set aside the proceedings initiated by the 2nd respondent under Section 64(A) of the Karnataka Forest Act.
2. It is the case of the petitioner that the Government Surveyor issued a report with plan attached to the Assistant Director of Land Records, Chickmagalur which clearly depicts that the petitioner is in possession of the property in dispute and coffee cultivation in the said property has been in existence for 40-45 years. On 6.6.1983 proceedings were held by the Government vide order No.TT-50/82-83 of the Tahsildar, Koppa Taluk and no action had been taken by the respondents till 2008. On 12.3.1986 notice was issued to the petitioner’s predecessor by the respondent a levy at the rate of Rs.50/- per acre amounting to Rs.8,471.60 was demanded from 1964-65 to 1982-83 and double the assessment was claimed. On 31.5.1999, the Range Forest Officer, Koppa registered a forest offence vide No.22/99-2000 on the allegation that Sri.Wilfred Pinto, the husband of the petitioner and Mrs.Jeanne Pinto, the petitioner herein, have encroached forest lands measuring 8.5.acres in Sy.No.185, 23.5 acres in Sy.No.188, 32.11 acres in Sy.No.189 and 5.12 acres in Sy.No.229 of Heroor Village, with a total encroachment altogether measuring 68.33 acres. In response, petitioner’s husband late Wilfred Pinto served a notice under Section 80 of the Civil Procedure Code dated 10.11.1999 against 2nd respondent and against the Government and also to the Deputy Commissioner, Chickmagalur District, Tahsildar, Koppa Taluk and Range Forest Officer, Koppa Taluk asserting his title over the property in question and claiming to have perfected the same by adverse possession against the Government at an undisputed point of time and also prayed that on failure on the part of the 2nd respondent to acknowledge title of the petitioner and late Wilfred Pinto, a suit will be filed for declaration by claiming adverse possession.
3.It is further the case of the petitioner that on 5.9.2001 a show cause notice came to be issued by the Assistant Conservator of Forest and the Technical Assistant to the Deputy Conservator of Forest, Koppa Division, Koppa to the petitioner asking him why they should not be evicted from the spot along with the crop raised. The petitioner filed objections on 19.9.2001 stating that he has been in possession of the suit lands for more than 100 years and that they have perfected their title by way of adverse possession. Further, on 6.10.2008 a notice was issued in DFT 64(A) CR 73/07-08 explaining the consequences of encroachment and other associated problems and issues as well as the provisions of the existing forest laws and other relevant laws and rules with a request to vacate the encroached and in the interest of the society and the Government. Respondent No.2 sent a reply stating that the claim is false and that the property is a Government land and unless a satisfactory reply was given, the petitioner would be evicted forcibly from the property in question. On 27.10.2018 the petitioner submitted her reply along with the supporting documents and explained in details how she is entitled to the property in question and how she got aright over the property in question.
3. It is further the case of the petitioner that a suit in O.S.98/2008 was filed on 5.11.2008 before the Additional Senior Civil Judge, Chickmagalur, for declaration and injunction against the respondents and to declare that the petitioner has perfected her title to the properties by adverse possession, limitation and sought consequential relief of permanent injunction restraining the respondents herein from interfering with the peaceful possession of the suit schedule property and to further declare that the notice dated 6.10.2008 issued by the 2nd respondent to the petitioner is null and void and not binding on the petitioner. The Deputy Conservator of Forests , Koppa Division, Koppa under Section 64 of the Forest Act, considering the entire material on record proceeded to pass the eviction order on 12.11.2008 declaring that the properties/lands in question are forest lands and the petitioner is in unauthorized occupation of the said properties/forest lands and accordingly, he passed the eviction order under Section 64(A) of Karnataka Forest Act, 1983 by directing the petitioner to vacate the entire occupied land to the total extent of 68 acres 33 guntas in Sy.No.185, 188, 189 and 229 of Herur village, Koppa Taluk along with any crops raised in the land and any building created thereon and hand over the land within 30 days from the date of receipt of the said order.
4. Aggrieved by the aforesaid order passed by the Original Authority, the petitioner filed an appeal before the Chief Conservator of Forest under the provisions of Sections 64(A)(3) of the Karnataka Forest Act. After hearing both the parties, by impugned order dated 1.7.2014, the appeal came to be dismissed confirming the order passed by the Original Authority. Hence, the present writ petition is filed.
5. The State Government filed objections to the main writ petition and contended that the very writ petition filed by the petitioner is not maintainable either in law or on facts and hence the same is liable to be dismissed.
6. It is further contended that the Range Forest Officer, Koppa Range, Koppa Yaluk, Chikkamagalur district had registered FIR No.22/1999-2000 on 31.5.1999 for the offence punishable under Sections 2(2), 33 (2)(3), 73(d) of Karnataka Forest Act, 1963 Rule 25(2), 43 of Karnataka Forest Rules, 1969 and sections 2(ii) of Forest Conservation Act 1980 against the petitioner and her husband- Mr.Wilfred Pinto. Subsequently a joint survey was conducted by the Forest Department and the Revenue Department on 23.3.1999 and the boundaries of Neelagiri Estate owned by Mrs. Jeanne Pinto, was marked and also the encroachments by Mrs.Jeanne Pinto, located in various survey numbers stated supra and marked and also encroachment of the petitioner in the said survey numbers. Encroachment of the petitioner was to the extent of 68 acres 33 guntas. The joint survey sketch prepared by the authorities is produced as per Annexure R1.
7. That, after identifying the total encroachment by the petitioner, notice came to be issued directing the petitioner to vacate and the same was not done. Therefore, after issuing notice under the provisions of Section 64 of the Act and after considering the entire material on record, the original authority passed eviction order. The same was confirmed by the Appellate authority and dismissed the appeal. It is further contended that the respondents does not admit that the petitioner has got the relevant documents, survey reports by DDLR, Chikkamagaluru and no documents are produced by the petitioners and the RTC extracts in respect of the property in question made in favour of the petitioner clearly indicates that the said survey numbers has been notified as ‘forest reserve’ by the revenue department. The suit filed by the petitioner in O.S.No.98/2008 for declaration by adverse possession came to be dismissed and against the said judgment, RFA 988/2013 was filed before this Court and during the pendency of the suit, an application came to be filed for temporary injunction by the petitioner which came to be rejected and the same was submitted matter of MFA 7684/2009 which came to be dismissed on 14.12.2009 as per Annexure-R6. It is further contended that both the authorities concurrently held that the petitioner is an unauthorized occupant of the forest lands and in view of the judgment of the Hon’ble Supreme Court in the case of T.N.Godavarman Thirumulkpad – Vs – Union of India and others reported in AIR 1997 SC 1228 held that forest means all statutorily recognized forests, whether designated as reserved, protected or otherwise and forest land will not only include forest as understood in the dictionary sense but also any area recorded as forest in Government record and therefore, the petitioner has to be evicted summarily. Therefore, sought to dismiss the writ petition.
8. I have heard the learned counsel for the parties to the lis.
9. Sri.Cyril Prasad Pais, learned counsel for the petitioner contended that the impugned order passed by the original authority confirmed by the Appellate Authority exercising powers under Sections 64 and 64(A)(3) of the Karnataka Forest Act are contrary to the material on record and therefore, liable to be quashed. He further contended that both the authorities failed to notice that the petitioner and their predecessor in title has been in possession of the property for more than 100 years and the attempt is made by respondent No.2 in order to grab the valuable property vindictively and in a great hurry. Proceedings on the basis of possession for over 40 years were started as per the Tahakkr Thakthe in No.50/1982-83. He further contended the notice dated 6.10.2008 issued by the authorities in this regard was also the subject matter of the suit in O.S.No.98/2008 filed by the petitioner for declaration of title in respect of the property in question for adverse possession. The suit came to be dismissed which is erroneous. That is the subject matter of appeal pending before this Court in RFA No.988/2013. Therefore, the authorities ought not to have initiated proceedings under Section 64A of the Karnataka Forest Act, 1963. The petitioner filed objections explaining the respondents that they are in possession of the land without any interruption for more than 100 years and perfected title by adverse possession. The order passed by the authorities are in utter violation of Article 14 of the Constitution of India. Therefore, he sought to allow the writ petition.
10. Per contra, learned High Court Government Pleader for the respondent while reiterating the averments made in the statement of objections sought to dismiss the writ petition and contended that admittedly the properties in dispute in the present writ petition are forest lands and the petitioner and the predecessor in title have been in unauthorized occupation of the Government lands. Therefore, the authorities after holding joint survey and detailed enquiry passed the impugned order and that both the authorities concurrently held that the lands in Sy.Nos.185, 188, 189 and 229 to a total extent of 68 acres 33 guntas of Herur Village are forest lands and the petitioners have no right, title or interest to continue in the property in question. Therefore, the impugned order passed by the authority is just and proper.
11. She further contended that the suit filed by the petitioner challenging the very impugned notice issued by the original authority and for declaration of title by adverse possession came to be dismissed on 6.2.2013 and the appeal filed before this Court in RFA 988/2013 is pending adjudication but no interim order is passed by this Court. Therefore, she sought to dismiss the writ petition.
12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record carefully.
13. It is an undisputed fact that the property bearing Sy.Nos.185, 188, 189 and 229 totally measuring 68 acres 33 guntas situated at Herur village Chickmagalur district are forest lands. The authorities after holding joint inspection came to the conclusion that the petitioner is in unauthorized possession of 68 acres 33 gutnas of forest lands. Accordingly, the authorities issued notice to the petitioner and the petitioner produced the entire material on record. Considering the pleadings of both the parties, the original authority framed the following issues :-
“1. What is the nature of encroached land in Sy.Nos.185, 188, 189 & 229 of Herur Village in Koppa Taluk ? Whether they could be considered as “Forest” lands ?
2. Whether the applicant /accused have encroached the said forest land in Sy.Nos 185, 188, 189 & 229 ?
3. Whether he has any legal rights over the encroached land ?
4. Whether the proceedings under section 64 A of Karnataka Forest Act 1963 could be taken up with respect to the encroached land in Sy.Nos 185, 188, 189 & 229 ?
5. Whether the applicant is eligible for regularization of encroached land ?
6. What is the final order ?”
14. Considering the entire material on record the original authority /authorized officer has recorded a finding that the lands in Sy.Nos.185, 188, 189 and 229 situated in Herur village of Koppa Taluk are forest lands and the that the applicants therein, petitioner herein along with her husband (deceased), have encroached the said lands to an extent of 68 acres 33 guntas. It is further recorded that the petitioner has no legal right over the encroached land and the eviction notice issued by the authorities under the provisions of Section 64A of the Karnataka Forest Act is just and proper and the applicants are not entitled for regularization and further recorded that the Deputy Commissioner, Chikmagalur District Chikmagalur has notified Sy.No.185 to the extent of 128.20 acres, Sy.No.188 to an extent of 71 acres and Sy.No.189 to an extension of 87 acres 20 guntas as forest reserve and handed over to the forest department on 5.6.2002. It has further recorded a finding that the petitioner has admitted that he has encroached forest lands and wanted to claim adverse possession. This does not convey any legal rights to the applicants as on that date. The contention that they have been in occupation of the said lands for more than 100 years is a figment of imagination as the Range Forest Officer, Koppa Range reported in his report that coffee plants are of 15-18 years old and the factum of legal right over the said property has not reflected in the revenue records like RTC etc. However, no claim what so ever has been mentioned against the accused in the Government records. This means as on today the exclusive rights of ownership in absolute term is with the State Government only. The petitioner in their statement of objections also admitted that the disputed lands are forest lands and this shows that there is no right whatsoever over the disputed lands and it belongs to the State Government.
15. The authorities further recorded a finding that by own admission of the petitioner in the statement of objection and the records submitted by the petitioner that the petitioner is a rich plantation owner having established Nilgiri Coffee Estate. As per the existing Land Grant Rules and the Revenue Acts only the landless, marginal and poor farmers who do not have sufficient land should be considered under the Government Scheme for regularization. According to the petitioner, the total extent encroached by him is more than 4.30 acres and that they are already in possession of 66 acres 1 gunta and have encroached the Government land stated supra. The act of the petitioner that their contention is not only illegal and also mockery of the existing legal system and social justice. They have damaged the natural tree growth and also enjoyed the benefit out of the said land without paying any thing to the Government and their continued illegal occupation, is inimical to the provisions of law and against the Government. In view of the provisions of Section 2 of the Karnataka Conservation Act, 1980, Forest Act, as held by the Hon’ble Supreme Court in the case of T.N.Godavarman Thirumulkpad vs. Union of India and others reported in AIR 1997 SC 1228, the petitioner is liable to be evicted from the land in question.
16. Accordingly, the Authorised Officer and Deputy Conservator of Forests, Koppa Division, Koppa, vide order dated 12.11.2008, exercising the power vested under Section 64(A) of the Karnataka Forest Act 1963 directed the petitioner to vacate the entire encroached/occupied land to the extent of 68.33 gunts in Sy.Nos.185, 188, 189 and 229 of Herur Village, Koppa Village, Koppa Taluk along with the crops raised in the land and any building created thereon and hand over the land within 30 days from the date of receipt of this order.
17. Being aggrieved by the said order passed by the Original authority, the petitioner filed an appeal before the Chief Conservator of Forest and Appellate Tribunal under Section 64(A) (3) of Karnataka Forest Act and Tribunal after considering the entire material on record, framed the following issues :
“É1. ªÉÄîä£À«zÁgÀgÀÄ ¤UÀ¢üvÀ CªÀ¢üAiÉƼÀUÉ ªÉÄîä£À«AiÀÄ£ÀÄß ¸À°è¹zÁÝgÉAiÉÄà ?
2. ªÉÄîä£À«zÁgÀgÀÄ ¸ÀzÀj CgÀtå ¨sÀÆ«ÄAiÀÄ ªÉÄÃ¯É ºÀPÀÄÌ EzÉAiÉÄà ?
3. ªÉÄîä£À«zÁgÀgÀÄ CgÀtå ¥ÀæzÉñÀ MvÀÄÛªÀj ªÀiÁr PÁ£ÀÆ£ÀÄ G®èAWÀ£É ªÀiÁrgÀÄvÁÛgÉAiÉÄà ?
4. ¸ÀzÀj ¨sÀÆ«ÄAiÀÄ ªÉÄÃ¯É ªÉÆÃdt PÁAiÀÄð ¸ÀªÀÄ¥ÀðPÀªÁV £ÀqÉ¢gÀĪÀÅzÉ ?
5. PÀ£ÁðlPÀ CgÀtå PÁAiÉÄÝ 64(J) gÀ ¥ÀæPÁgÀ DzÉñÀ ¤ÃrgÀĪÀ F ¥Áæ¢üPÁgÀzÀ°è ªÉÄîä£À«zÁgÀjUÉ ¸ÀÆPÀÛ PÁ¯ÁªÀPÁ±À ¤ÃqÀ¯ÁVzÉAiÉÄà ?
6. C¢üãÀ C¢üPÁjAiÀĪÀgÀÄ ¤ÃrgÀĪÀ DzÉñÀ ¸ÀªÀÄ¥ÀðPÀªÁVzÉAiÉÄà ?”
and recorded the finding that the appellant has not proved any right on the said forest land and that the appellant has encroached the Government land which is in violation of the Forest Act and the joint inspection held by the authorities regarding the appellant’s encroachment is in accordance with law. Further reiterating the findings recorded by the Original authority and following the decision of the Hon’ble Supreme Court stated supra, has come to the conclusion that the order passed by the original authority has given sufficient opportunity from 19.2.2009 till 20.5.2014 and passed the orders in accordance with law and further held that the petitioner herein has not made out any grounds for interference made by the Government in this regard and accordingly, the appeal came to be dismissed.
18. It is also not in dispute that the petitioner challenging the very notice issued by the Authorised Officer/Deputy Conservator of Forest filed O.S.No.98/2008 for declaration of title by adverse possession. After contest the trial Court by judgment and decree dated 6.3.2013 dismissed the suit holding that the petitioner has failed to prove his title in respect of the properties in question. That is the subject matter of appeal in RFA No.988/2013 pending adjudication between the parties and no interim order is granted by this Court in the said appeal.
19. Both the authorities below considering the entire material on record has come to the conclusion that the petitioner is in occupation of Sy.Nos.185, 189 and 229 of Herur Village, Koppa Taluk after joint inspection and held the petitioner has to evict in view of the provisions of Section 2 of the Forest Conservation Act, 1980 as held by the Supreme Court in the case of T.N.Godavarman Thirumulkpad stated supra. Such a finding of fact cannot be interfered by this Court exercising powers under Articles 226 and 227 of the Constitution of India.
Accordingly, Writ petition is dismissed as devoid of merits.
However, it is needless to observe that the impugned orders passed by the Original Authority, confirmed by the Appellate Authority are always subject to the result of the RFA No.988/2013 pending adjudication between the parties.
Ordered accordingly.
Sd/- JUDGE rs