IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION Nos.45391-45392/2011 (GM-FOR) BETWEEN:
1. Smt. K.H. Lakshmamma D/o of Late. K.H. Honnegowda Aged about 64 years R/at No.1072, 11th Main Road 2nd Stage, West of Chord Road Mahalakshmipuram Bangalore-560086.
2. Dr.H.R. Doddiah S/o Late. Rangaiah Aged about 74 years R/at Alire Hosahalli village Yaliyur Post, Huttaridurga Hobli Kunigal Taluk, Tumkur District. ... Petitioners (By Sri K.Ranjan Kumar, Advocate) AND 1. The State of Karnataka By its Under Secretary The Department of Forest The State of Karnataka Bangalore-560 001.
2. The Chief Conservator of Forest Aranya Bhavan Malleshwara 18th Cross Bangalore.
3. The Assistant Conservator of Forests South Division Bangalore City Bangalore.
4. The Range Forest Officer Kaggalipura Range Bangalore. ... Respondents (By Smt. Niloufer Akbar, AGA for R1 to R4) These writ petitions are filed under Articles 226 and 227 of Constitution of India praying to quash the order of the 2nd respondent dated: 22.03.2011 in Appeal No.166/ 2010-11 vide Annexure-S and quash the 2nd respondent order dated 18.05.2011 vide Annexure-T & etc., These writ petitions coming on for final hearing this day, the Court made the following:
O R D E R These writ petitions are directed against the order dated 22.3.2011 (Annexure-S) and order dated 18.5.2011 (Annexure- T), both passed by the Chief Conservator of Forests, Bangalore in Appeal No.166/2010-11.
2. Brief facts of the case:
Originally the land bearing Sy.No.256 of B.M.Kaval Village, Kengeri Hobli measuring 2 acres 20 guntas belonged to one Sri.Pappayya s/o Narasimhaiah. The said Sri.Pappaya sold the land in Sy.No.256 to one Sri.Hanumaiah s/o Sri.Munisidasappa. Sri.Hanumaiah and his brother Sri.Chikkanna were in possession and enjoyment of the said property. After the death of Sri.Chikkanna, the name of his wife Smt.Chikkarangamma was entered in RTC. Later, Smt.Chikkarangamma, her daughter Smt.Manjula and son Sri.Muniraju sold the said property in favour of petitioner No.1 herein Smt.K.H.Lakshmamma by a registered sale deed dated 17.11.2007.
In respect of Sy.No.257 situated at B.M.Kaval Village, Kengeri Hobli, Bangalore South Taluk measuring 1 acre 35 guntas, one Sri.Hanumaiah was the owner of the said property. Due to domestic and other legal necessities, he sold the said land in favour of Sri.Muniyappa s/o Ramaiah through registered sale deed dated 12.9.1995. The said Ramaiah and his children sold the said property in favour of petitioner No.2 herein Dr.H.R.Doddaiah s/o Late Rangaiah through registered sale deed dated 26.11.2007.
3. Since the date of purchase of the lands, the petitioners are in possession of the respective properties. The respondent Authority by invoking Section 64(A) of the Karnataka Forest Act, 1963 (‘Act’ for short) has initiated proceedings for eviction of the land on the ground that the land is forest land. Notice has been issued to Sri Shankarappa, Sri Chikkanna and Sri Gangamuniyappa and eviction order dated 23.9.2009 vide Annexure-L is passed. After coming to know about the eviction order dated 23.09.2009, the petitioners have filed the appeal before the Chief Conservator of Forests, Bangalore in Appeal No.166/2010-11 under Section 64-A(3) of Karnataka Forest Act, 1963 challenging the eviction order dated 23.09.2009. The respondent No.2 herein dismissed the appeal vide order dated 22.3.2011 on the ground that it is barred by limitation. Being aggrieved by the said order, the petitioners filed review petition and the said review petition also came to be rejected by respondent No.2 herein vide order dated 18.5.2011. Hence, the petitioners have filed these writ petitions challenging the order dated 22.3.2011 (Annexure-S) and order dated 18.5.2011 (Annexure-T) passed by respondent No.2.
4. Sri K.Ranjan Kumar, learned counsel appearing for the petitioners submits that the petitioners have purchased the property by registered sale deeds on 17.11.2007 and 26.11.2007 respectively. Subsequently, their names have been entered in the revenue records. The respondent Authority has initiated the proceedings under Section 64-A of the Act in the year 2006. The notice has been issued on 07.02.2007 to the parties. He further contends that as on the date of passing the final order, they were in the possession of the property. The third respondent without impleading petitioners as parties in the proceedings, passed the eviction order on 23.09.2009. Immediately after came to know about the order passed by respondent No.3 they have filed the appeal under Section 64- A(3) of the Act before the second respondent. The second respondent has dismissed the appeal on the ground that the appeal is barred by limitation. He further contends that immediately after coming to their knowledge they have filed an appeal. Therefore, there is no delay in filing the appeal. Without considering these aspects of the matter the appellate authority has wrongly rejected the appeal on 22.03.2011. Subsequently they have filed an application for review of the order dated 23.03.2011 and the same is also dismissed on 18.05.2011.
5. Per contra, Smt.Niloufer Akbar, learned Additional Government Advocate appearing for the respondent State submits that as on the date of initiation of the proceedings the lands were in possession of Shankarappa S/o.Ramakrishnappa, Chikkanna S/o.Munidasappa and Gangamuniyappa S/o.Munidasappa. Therefore, the authority has issued notices to the persons who were in possession of the property. The petitioners have purchased the property after initiation of proceedings. She further contends that under Rule 69-A of the Karnataka Forest Rules, 1969 (‘Rules’ for short) prescribed 30 days limitation for filing an appeal. Since admittedly the appeal filed by the petitioner was beyond limitation, the authority has rightly rejected the appeal on the ground that it is barred by limitation.
6. Heard learned counsel for the parties.
7. It is not in dispute that the first petitioner has purchased the property bearing Sy.No.256 measuring 2 acres 20 guntas by a registered sale deed dated 17.11.2007 and the second petitioner has purchased the land bearing Sy.No. 257 measuring 1 acre 35 guntas by a registered sale deed dated 26.11.2007. Subsequent to that their names have been entered in the revenue records. As on the date of initiation of the proceedings under Section 64-A of the Act the petitioners were not in possession of the property. The authority has rightly issued notices to the persons who were in possession of the property. The specific case of the petitioners is that they have purchased the property on 17.11.2007 and 26.11.2007 during the pendency of the proceedings before the competent authority. As on the date of passing the order dated 23.09.2009 they were in possession of the property. The third respondent without impleading the petitioners passed an order dated 23.09.2009 under Section 64-A of the Act. Immediately after coming to their knowledge they have filed an appeal before the second respondent under Section 64-A(3) of the Act.
8. As per the provisions of Rule 164-A of the Rules, an appeal under sub-section (3) of Section 64-A shall be filed within one month from the date of order under sub-section (1) thereof. The petitioners were not parties before the third respondent and they were not aware of the order passed by the third respondent under Section 64-A of the Act. Immediately after coming to their knowledge they have filed an appeal before the appellate authority.
9. Therefore, without expressing any opinion on the merits of the case, to give opportunity to the petitioners the order passed by the appellate authority in Appeal No.166/2010-11 dated 22.03.2011 (Annexure-S) and the revision dated 18.05.2011 (Annexure-T) are quashed. The matter is remitted back to the appellate authority for fresh consideration in accordance with law without going in to the question of limitation.
With the above observations, the writ petitions stand disposed of.
Sd/- JUDGE DM/cm