IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY 2019 BEFORE THE HON'BLE Mr. JUSTICE B.VEERAPPA WRIT PETITION NO.39215 OF 2011 (GM-FOR) & WRIT PETITION NO.39297 OF 2011 BETWEEN:
1. SRI.JAMES PRASAD NARONHA, S/O.GEORGE NARONHA, AGED ABOUT 40 YEARS, R/AT ANJAD PRASAD HOUSE, UPPINANGADY, PUTTUR TALUK, D.K. DISTRICT.
2. SRI.FRANCIS PRAVEEN PINTO, S/O.NORBART PINTO, AGED ABOUT 46 YEARS, RESIDING AT HILL SIDE, DARBE, PUTTUR TALUK, D.K. DISTRICT. ... PETITIONERS (BY SRI.SRIKANTH.N.V, ADVOCATE FOR SRI.SACHIN.B.S, ADVOCATE) AND:
1. STATE OF KARNATAKA, DEPARTMENT OF FOREST, M.S.BUILDING, BANGALORE, REP BY ITS SECRETARY.
2. FOREST ADMINISTRATIVE OFFICER, MANGALORE, D.K. DISTRICT.
3. THE DEPUTY CONSERVATOR OF FORESTS, MANGALORE, D.K. DISTRICT.
4. THE RANGE FOREST OFFICER, PUTTUR SUB-DIVISION, PUTTUR, D.K. DISTRICT.
5. THE SPECIAL DEPUTY TAHSILDAR, PUTTUR, D.K. DISTRICT. ... RESPONDENTS (BY SRI.Y.D.HARSHA, AGA) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DT.23.8.94, ISSUED BY THE R1 IN SO FAR AS SY.NO.120/2 MEASURING 2 ACRES 41 CENTS & SY.NO.209/1A2 MEASURING 60 CENTS OF OLAMOGRU-ARYAPU VILLAGE, PUTTUR TQ. D.K, DIST. VIDE ANN-A AND ETC.
THESE PETITIONS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners, who claims to be the owner of the properties bearing Sy.No.120/2 to an extent of 2 acres 41 cents and Sy.No.209/1A2 to an extent of 60 cents, both situated at Olamogru Village, Puttur Taluk, Dakshina Kannada, District are before this Court seeking writ of certiorari to quash the notification dated 23.08.1994 issued by respondent No.1 in respect of lands stated supra as per Annexure – A etc.
2. It is the case of the petitioners that the properties are in dispute were originally granted to the grandfather of petitioner No.2 by name Francis Pinto by the jurisdictional Tahsildar on 12.11.1959 as per Annexure – B. In pursuance of the grant, the Authorities have also drawn sketch as per Annexure – C.
3. It is the further case of the petitioners that by virtue of the grant in favour of grandfather of petitioner No.2, who enjoyed the properties by cultivating the said lands by planting arecanut plants and was residing in the properties from 1959. Subsequently, the original grantee i.e., grandfather of petitioner No.2 had executed a will in favour of his daughter-in-law by name Benedict Pinto and after the death of the grandfather of petitioner No.2, the mother of petitioner No.2 was enjoying the properties are in question and thereafter, the mother of petitioner No.2, had executed a will in favour of her first son i.e., petitioner No.2 in respect of property bearing Sy. No.120/2 measuring 2 acre 41 cents on 30.05.2007. Petitioner No.2 had sold the said land in favour of petitioner No.1 under registered sale deed. As per RTC, which produced at Annexures – E, E1, E2 and F shows the names of the original grantee – the grandfather of petitioner No.2 by name Francis Pinto for the year 2002-03 and 2010- 11, the mother of petitioner No.2 - Benedict Pinto for the year 2007-08 and petitioner No.1 for the year 2011-12.
4. It is further contended that from the date of purchase of the said property in question, petitioner No.1 was in possession of Sy.No.120/2 and was lawfully cultivating the said land by planting arecanut plants. In respect of another Sy.No.209/1A2 measuring 60 cents, which continued in possession of petitioner No.2. The things stood thus, surprisingly the authorities of the Forest Department have approached the petitioners saying that the properties in question are the forest lands belonging to the respondents herein and they tried to dispossess the petitioners from the said properties are in question. When this being the facts, the petitioners herein had applied to the copies of the said documents under Right to Information Act to know as to the status of the properties are in question. Subsequently, it was found that respondent No.1 had issued the impugned notification way back in the year 1994 notifying the properties of the petitioners into reserved forest area. It is further stated that the petitioners have been paying necessary taxes of the said properties to the State Government from time to time for having in possession over the said properties and also obtained encumbrance certificate, which clearly indicates that the petitioners names are continued from 01.09.2010 to 29.06.2011. Therefore, the petitioners are before this Court seeking relief sought for.
5. The respondents – State filed objections to the writ petitions and has not disputed the fact that the grant was made in favour of the grandfather of petitioner No.2 by name Francis Pinto and further contended that the writ petitions filed by the petitioners are liable to be dismissed on the ground of delay and laches of more than 17 years. It is further contended that on 18.08.1982, to an extent of 90 acres, notification came to be issued under Section 4 of the Forest Act, by respondent No.1 after conducting an enquiry and receiving objections from the general public, the Government of Karnataka vide Government Order dated 23.08.1994 has finally notified an area of 90 acres including Sy. Nos.120/2 and 209/1A2, as reserved forest.
6. It is further contended that the Forest Settlement Officer, Dakshina Kannada, has held proceedings. As per the report dated 12.05.1986 of the Revenue Officer of Forest Department, Mangalore the grantee was never in occupation of the land and he has not cultivated the same by planting arecanut. In this regard, it is submitted that the Forest Department has raised cashew plantation in the said lands 15 years ago itself and the lands belonging to the petitioners are under the possession and control of the Forest Department.
7. It is further contended that the Forest Settlement Officer has reported regarding the grant was made in favour of the grandfather of the petitioner No.2. After spot inspection of the said lands, it was noticed that neither the grandfather of the petitioner No.2 nor the petitioners were cultivated the lands nor they were in possession of the same and the grandfather of the petitioner No.2 has violated the conditions of the grant. Further, grantee has also not paid the taxes pertaining to the land as prescribed by the Government as on that date. Since grantee has violated the grant condition Nos.3 and 4, the grant made in his favour is liable to be cancelled.
8. It is further contended that the lands in question were reserved Forest, nobody has got any right to sale or divert the said forest land without prior permission of the Central Government in accordance with the provisions of Section 2 of the Forest Conservation Act, 1980 and further contended that preliminary notification came to be issued on 18.08.1982 and final notification was published on 23.08.1994 since the petitioner’s grandfather not cultivated, the state Government has issued notifications stated supra.
9. It is further contended that the Forest Department requested the Tahsildar to mutate the lands in the Revenue records as forest land and issued necessary R.T.C. to the Department. The Tahsildar has not mutated the land as forest and has not issued R.T.C. as on date. Hence, R.T.Cs. are still continued in the name of the petitioners and the same is liable for cancellation. Therefore, sought for dismissal of the writ petitions.
10. Having heard the learned counsel for the parties, it is undisputed fact that the jurisdictional Tahsildar by order dated 12.11.1959 has granted 2 acre 41 cents in Sy. No.120/2 and 60 cents in Sy. No.209/1A2 situated at Olamogru Aryapu Village, Puttur Taluk, D.K. District in the name of grandfather of petitioner No.2 by name Francis Pinto as per Annexure – B and subsequently, the Authorities have prepared sketch and marked the said lands as per Annexure – C. It is the case of the petitioners that the original grantee has executed a will in favour of his daughter-in-law – Benedict Pinto and thereafter, the daughter-in-law has executed a will in favour of petitioner No.2 and petitioner No.2 had executed sale deed in respect of Sy.No.120/2 in favour of petitioner No.1 and the petitioner No.1 is in possession and enjoyment of the said land in question and in respect of Sy.No.209/1A2, is in possession of petitioner No.2 that is how they became the owners of the properties are in question.
11. It is the case of the respondents – State that the Forest Department has issued preliminary notification on 18.08.1982 and final notification on 23.08.1994 and declared the properties in question as forest lands.
12. It is also on record that as per Annexure – R4 the Forest Settlement Officer has recommended for cancellation of the grant made in favour of the grandfather of petitioner No.2 on the ground that they never cultivated the land nor they are in possession as per report dated 12.05.1986. It is also stated in the objections that the Tahsildar has not mutated the R.T.C. in respect of the said lands as forest lands. There is nothing on record to show with regard to acceptance of the recommendation made by the Forest Settlement Officer for cancellation. The grant of Jurisdictional Authority in favour of the grandfather of petitioner No.2 by name Francis Pinto has to be cancelled after following procedure as contemplated. The R.T.C. produced by the petitioners clearly depicts the name of the original grantee subsequently, his daughter-in-law and the petitioners. The respondents have not stated in the statement of objections as to whether they have issued notice to the owners of properties in question since the grant made in favour of the original grantee – Francis Pinto is not disputed, unless and until the grant is cancelled after issuing the notice to the original owners of the properties in question, the Government cannot issue preliminary and final notifications dated 18.08.1982 and 23.08.1994 respectively. The statement of objections does not depict that the respondents have issued notice to the concerned owners of the properties in question as on the date of the notifications. Admittedly, as per the records produced by the petitioners and respondents, the grant was made in favour of the grandfather of petitioner No.2 and the same is not yet cancelled. In the absence of such material, the impugned notifications issued by the State Government as per Annexure – A cannot be sustained in so far as the property bearing Sy. No.120/2 measuring 2 acre 41 cents and Sy. No.209/1A2 measuring 60 cents, both situated at Olamogru Aryapu Village, Puttur Taluk, D.K. District.
13. For the reasons stated above, the writ petitions are allowed and the impugned notification issued by the State Government as per Annexure – A dated 23.08.1994 is hereby quashed with liberty to the respondents to issue notice and provide an opportunity to the petitioners, and thereafter to pass appropriate orders strictly in accordance with law.
Ordered accordingly.
Sd/- JUDGE VBS