IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.16272 OF 2011 (GM-FOR) BETWEEN:
SRI TULASI NARAYAN PRADHAN AGED ABOUT 65 YEARS S/O. LATE NARAYAN SINGH RESIDING AT NO.5, KAMALA NIVAS 4TH MAIN ROAD, 20TH CROSS N.S.PALYA, BANGALORE - 76 …PETITIONER (BY SRI G.A.VISWANATHA REDDY, ADV.) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY HIS SECRETARY DEPARTMENT OF FOREST VIDHANA SOUDHA BANGALORE -560 001 2. THE CONSERVATOR OF FOREST BANGALORE CIRCLE BANGALORE 3. ASSISTANT CONSERVATOR OF FOREST BANGALORE SOUTH SUB-DIVISION BANGALORE 4. FOREST RANGE OFFICER ANEKAL RANGE ANEKAL TALUK BANGALORE DISTRICT …RESPONDENTS (BY SRI S.S.MAHENDRA, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.01.2007 PASSED BY THE ASSISTANT CONSERVATOR OF FOREST, BANGALORE SOUTH SUB-DIVISION, BANGALORE, VIDE ANNEXURE- X AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the order dated 10.01.2007, passed by the Assistant Conservator of Forest impugned at Annexure-X. The petitioner has also assailed the order dated 05.03.2011 passed by the Conservator of Forest in appeal No.1/2006-07 as at Annexure-A to the petition.
2. The petitioner claims to be the lawful owner in possession and enjoyment of the agricultural land bearing Sy.No.67 measuring 09 acres 07 guntas of Bhutanahalli village, Jigani Hobli, Anekal Taluk. The petitioner is stated to have purchased the said land under four registered sale deeds dated 02.09.1996 from his vendors and had thereafter obtained the necessary revenue entries. Insofar as, the title of the predecessors of the petitioner, it is contended that they were granted lands. The respondent No.3 has thereafter passed an order dated 10.01.2007, in a proceedings initiated under Section 64(A) of the Forest Act, since according to the respondent, the land in question is a part of the forest land and the petitioner has no right in respect of such land. The petitioner claiming to be aggrieved by the said order dated 10.01.2007, had filed an appeal under Section 64(A)(3) of the Forest Act, before respondent No.2 who is the Appellate Authority.
3. The respondent No.2 through the order dated 05.03.2011 has upheld the order passed by respondent No.3 and dismissed the appeal. It is in that light, the petitioner claiming to be aggrieved by the orders passed by respondent Nos.2 and 3 is before this Court in this petition.
4. The learned Government Advocate with reference to the orders impugned and also by relying on the orders passed by this Court in an earlier proceedings in W.P.No.21943/2010 and connected petitions dated 01.07.2013, would contend that the land in question is a forest land and therefore the petitioner cannot claim any right in respect of the land as an agricultural land. It is further contended that respondent No.3 as also the Appellate Authority namely respondent No.2 on taking note that the revenue entries made in favour of the petitioner has been cancelled by the competent revenue authorities and further keeping in view that the land in question is the forest land had arrived at a conclusion and therefore, the order does not call for interference.
5. The learned counsel for the petitioner on the other hand, apart from seeking to assail the order dated 10.01.2007, would refer to the order sheet maintained in the proceedings before the Appellate Authority in appeal No.1/2006-07. In that light, it is contended that the petitioner had relied on the document to claim title to the property and also to indicate that the property in question is not forest land. It is in that view contended that the Appellate Authority with reference to the said document and only taking note that the petitioner and representatives of the petitioner had not appeared on certain dates has proceeded to pass the impugned order. It is in that light contended that the petitioner would be in a position to establish his right before the Appellate Authority with reference to the document, if an opportunity is granted.
6. In the light of the above, at the outset, I have referred to the order dated 05.03.2011, passed by the Appellate Authority which is impugned at Annexure-A to the petition. A perusal of the same would indicate that the Appellate Authority having taken note of the order passed by the original authority namely respondent No.3 has observed that though four years had elapsed after filing the appeal, the petitioner had not relied upon proper document. In that regard having taken into consideration that the mutation entries relating to Sy.No.67 had been cancelled and the same was indicated as a minor forest in the record of rights, has arrived at a conclusion that it is a forest land and the appeal filed by the petitioner is to be rejected.
7. Having taken note of the same what is also to be kept in view is that even from the proceedings before this court in W.P.No.21943/2010 dated 01.07.2013, this Court while considering the action initiated by the respondent in canceling the revenue entries in respect of the very same property which is the subject matter presently, was of the opinion that the order passed by the Deputy Commissioner to the limited extent relating to revenue entries is to be set aside and in that regard this court had also held that if the petitioner herein who was also the petitioner in the said proceedings, is entitled to claim for any further reliefs, it is open for him to approach Civil Court. If that be the position, the consideration no doubt was with regard to revenue entries relating to the property. Notwithstanding the same, if the land in question is classified as forest land, consideration in view of the decision in several other cases is also that mere change of entry would not create any right.
8. Therefore, even in a proceedings of the present nature, the Appellate Authority at the outset was required to come to a conclusion with regard to the nature of the property as it originally stood and in that light whether the revenue entries are justified or not. Mere cancellation of revenue entries alone would not be the basis. Therefore, the consideration in the background of the documents that would be produced by the petitioner will have to be made. Without such consideration the valuable rights relating to immovable property based on the order of default would not be justified. Hence, in that circumstance, when the Appellate Authority is required to take note of the documents to be relied on by the petitioner and also keeping in view the documents available with the respondents authority. In that view the consideration of the correctness or otherwise of the order dated 10.01.2007, (Annexure-X), in the instant petition would not be necessary nor would it be appropriate for this court to quash the same. However, to enable the Appellate Authority to take into consideration all these aspects of the matter and to arrive at an appropriate conclusion the matter is to be remanded. In a writ petition of the present nature, this Court cannot decide upon the nature of the land and the right as claimed by the parties and this exercise is to be done in an appeal by re-appreciation of materials available on record.
9. Hence, to the limited extent to enable the same, the order dated 05.03.2011 is set aside and the appeal No.01/2006-07 is restored to the file of respondent No.2/Appellate Authority. The petitioner shall appear before the Appellate Authority without issue of further notice on 14.11.2017 at 03:00 p.m. The petitioner is also granted liberty to file the additional documents if any relied on by the petitioner to establish the case in the appeal. If such documents are filed, the respondent No.2/Appellate Authority shall receive the same and provide opportunity to the petitioner to put- forth his contentions and thereafter take a decision in the matter in accordance with law.
10. Needless to mention that if the petitioner does not avail the opportunity by producing necessary documents, the opportunity as granted would stand forfeited. The Appellate Authority on appearance of the petitioner shall regulate the proceeding and take a decision in the matter as expeditiously as possible but not later than three months from the date of first appearance.
Petition is accordingly disposed of.
Sd/- JUDGE HJ