IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.23879-23887/2011 (GM-FOR) Between:
1. Sri. Venkatachalaiah S/o. late Hanumantha Aged about 85 years 2. Sri. Manjunath S/o. late Thammaiah Aged about 30 years 3. Sri. Eraiah S/o. late Byrappa Aged about 85 years 4. Sri. Venkategowda S/o. Muddaiah Aged about 65 years 5. Sri. Boralingaiah S/o. Hanumanthappa Aged about 60 years 6. Sri. Muddaveeraiah @ Eranna S/o. Kenchaiah Aged about 55 years 7. Smt. Kempamma W/o. late Kariyanna Aged about 65 years 8. Sri. S.Rajkumar S/o. late Sidappa Aged about 40 years 9. Sri. Venkatesh S/o. late Rangappa Aged about 50 years All are R/o. Honavalli Kasaba Hobli, Gubbi Taluk Tumkur District.
(By Sri. K.R.Ramesh, Adv.,) And:
1. Union of India Rep. by its Secretary Department of Forest New Delhi.
2. The State of Karnataka, Represented by its Principal Secretary to Government, Forest, Environment and Ecology Dept. Multi-storied Buildings Bangalore – 560 001.
3. The Conservator of Forests Hassan Circle, Hassan.
4. The Deputy Conservator of Forests, Tumkur District, Tumkur.
5. The Authorised Officer and Assistant Conservator of Forests, Tumkur Sub-Division, Tumkur ... Petitioners 6. The Range Forest Officer, Gubbi Range, Gubbi, Tumkur District.
... Respondents (By Sri. Kumar M.N., CGC for R1;
Smt. Rafeeunisa, HCGP for R.2 to R.6) ***** These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 16.08.2010 passed by R.5 at Annex-C and order dated 16.11.2010 passed by R.3 in Appeal No.1/10-11 and Appeal No.2/10-11 at Annex-D and E, etc.
These Writ Petitions coming on for Hearing, this day, the Court made the following:
O R D E R The petitioners filed the present writ petitions for a writ of certiorari to quash the order dated 16.08.2010 passed by the fifth respondent vide Annexure-C and the orders dated 16.11.2010 passed by the third respondent in Appeal No.1/2010-11 and Appeal No.2/2010-11 at Annexures-D and E and a writ of mandamus directing the respondent authorities to consider the applications filed by the petitioners for regularization of encroachment in terms of the Circular/Government Order dated 05.05.1997 in No. FEE-5-FGL-90 issued by the Revenue Department.
2. It is the case of the petitioners that they have encroached portions of the forest land in Sy.No.372/2, Sy.No.38, Sy.No.36/3, Sy.No.37/1, Sy.No.5/2, Sy.No.33/3, Sy.No.32 and Sy.No.33 of Honnavalli village, Kasaba Hobli, Gubbi Taluk, and developed the said lands as coconut garden, arecanut garden, mango plantation, etc. The Government of India has sought for report about the encroachment of the forest land in Tumkur district, so as to regularize such encroachments. The sixth respondent – Range Forest Officer, Gubbi Range, Gubbi, Tumkur District, has submitted a report as per Annexure - B excluding the lands of the petitioners and other various persons in several survey numbers except Sy.No.
30 of Honnavalli village. Therefore, the petitioners filed representation before the authority concerned to consider their request in terms of the circular issued. The authorities, without considering the application have proceeded to initiate proceedings under Section 64-A of Forest Act, 1963 and proceeded to pass the impugned order – Annexure-C dated 16.08.2010, declaring Sy.No.30 measuring 38 acres 37 guntas was held by 12 unauthorised occupants and directed them to vacate and hand over possession to the Forest department. The said order was subject matter of appeals before the Conservator of Forests/Appellate Authority in Appeal No.1/2010-11 and Appeal No.2/2010-11. The said appeals came to be dismissed by orders dated 16.11.2010 vide Annexures – D and E, confirming the order passed by the original authority. Aggrieved by the same, the present writ petitions are filed for the reliefs sought for.
3. I have heard the learned counsel for the parties to the lis.
4. Sri. Ramesh, the learned counsel for the petitioners contended that the impugned order was passed by the respondents ignoring the representations made by the petitioners to regularize their unauthorized occupation in terms of the Government order dated 05.05.1997, which is to the effect that persons who are encroachers prior to 27.04.1978 are entitled for regularization. Therefore, the impugned orders cannot be sustained. He would further contend that in terms of the directions issued by the Government of India, the sixth respondent submitted a report of the encroachers whose possession had to be regularized, but deliberately excluded the petitioners from the said list as per Annexure-B. Therefore, they made representation to the concerned authorities to include their names in the list submitted by the sixth respondent. Instead of considering the representation, the authorities wrongly invoked the provisions of Section 64-A and 64-A(3) of the Forest Act. Therefore, he sought to allow the writ petitions.
5. Per contra, Smt. Rafeeunissa, learned High Court Government Pleader sought to justify the impugned orders passed by the authorities and contended that in para 2 of the writ petitions, the petitioners themselves submitted that they are cultivators of the encroached Government forest lands prior to 1978. If it is true, they should have approached the concerned authorities at the right time and sought benefit at the relevant point of time. Therefore, she sought to dismiss the writ petitions.
6. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioners are encroachers of Sy.No.30 of Honnavalli village, Gubbi Taluk, classified as forest land to an extent of 2 acres 5 guntas, 2 acres 30 guntas, 2 acres 30 guntas, 1 acre 39 guntas, 4 acres 10 guntas, 1 acre, 1 acre 11 guntas, 3 acres 32 guntas and 7 acres 15 guntas respectively and they are cultivating this land since prior to 1978. It is the specific case of the petitioners that the petitioners have developed the land into garden by raising coconut garden, arecanut garden and mango plantation. The petitioners livelihood is dependent on agriculture. It is further contended that the Government of India directed the authorities to submit report, but the authorities did not include the petitioners’ name in the list of beneficiaries in terms of the Government Order issued by the State Government dated 05.05.1997 made in No. FEE-5-FGL-
90. Thereby, they have been deprived of the Government notification as they are also cultivating the land in question prior to 27.04.1978. It is the specific case of the State Government in the statement of objections, that the petitioners are all encroachers of forest land, they are not entitled for the benefit of the scheme and they are not entitled for regularization in view of the law laid down by the Supreme Court in T.N. Godavarman Thirumalpad’s case and sought for dismissal of the writ petitions.
7. The material on record clearly depicts that all the petitioners are encroachers of Government forest land. The only issue in the writ petitions is, whether the State Government has issued circular/Government order dated 05.05.1997 to regularize the unauthorized occupation held by persons prior to 27.04.1978 and whether the petitioners approached the concerned authorities with any document to avail the benefit under the Government Order dated 05.05.1997. Since they did not produce any documents to avail the benefit of the Government Order, the authorities initiated proceedings under Section 64-A of the Act and came to the conclusion that all these petitioners are not entitled for availment of the Government order and therefore, eviction order came to be passed, which was confirmed by the Appellate Authority.
8. According to the petitioners, they are in possession of the land prior to 27.04.1978 and they are entitled to the benefit of the Government Order dated 05.05.1997, but according to the respondents, the petitioners have not produced any documents before the authorities to establish that they are in possession of the land at the relevant point of time in terms of the Government Order. In the statement of objections filed, the State Government has not denied the fact that the sixth respondent has issued notification as per Annexure-
B to regularize the unauthorized encroachment of the forest land who were in possession prior to 27.04.1978. Both the authorities while passing the orders under Section 64-A and 64-A(3) of the Forest Act have not adverted to Annexure-B referred to herein by the petitioners.
9. Therefore, taking into consideration the given facts and circumstances of the case and developments made by the petitioners and they are in unauthorized occupation of the forest land prior to 27.04.1978, the matter requires reconsideration by the authorities, after considering the documents to be produced by the petitioners and decide whether they are entitled to the benefit of the Government Order dated 05.05.1997 if the said Government Order is still existing as on date.
10. The petitioners are hereby directed to produce the records before the fifth respondent – Authorised Officer and Assistant Conservator of Forests, Tumkur sub- division, Tumkur, to prove that they are in possession of forest land unauthorizedly prior to 27.04.1978 and if such documents are produced, it is for the third respondent – the Conservator of Forests, Hassan Circle, Hassan, to reconsider their case in the light of the Government order stated supra, if the Government order is still existing as on date and pass orders in accordance with law.
11. With the above observations and directions, the writ petitions are allowed. The impugned order dated 16.08.2010 passed by respondent No.5 as per Annexure-C and the orders dated 16.11.2010 passed by respondent No.3 in Appeal No. 1/2010-11 and Appeal No.2/2010-11 as per Annexures-D and E are hereby quashed. The matter is remanded to the fifth respondent- Authorized Officer and Assistant Conservator of Forests, Tumkur sub- division, Tumkur, to consider the case of the petitioners, in accordance with the observations made herein above, and in accordance with law.
12. The petitioners are hereby directed to appear before the fifth respondent - Authorized Officer and Assistant Conservator of Forests, Tumkur sub-division, Tumkur, on 26th August, 2019 and produce the relevant records, if any, to prove their case in accordance with law.
Sd/- JUDGE Mgn/-