Dismissed

The State of Karnataka v. Sri. R Shankarappa

Karnataka HC23 Mar 2023WA/1439/2018

Case brief

AI extract

What is this about?

This intra-court writ appeal was filed by the State of Karnataka challenging a Single Judge order that quashed a notice under the Forest Conservation Act. The High Court Bench examined the title documents and held that the Single Judge was correct in quashing the notice due to non-application of mind and upheld the liberty to issue a fresh notice if new materials emerge.

What did the court decide?

Writ Appeal dismissed; liberty granted to appellants to issue fresh notice if new materials warrant enquiry.

The State of Karnataka Vs Sri. R Shankarappa — Property and Title | Karnataka HC (2023)

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WA No. 1439 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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WRIT APPEAL NO.1439 OF 2018 (GM-FOR)

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BETWEEN:

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THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF FOREST, VIDHANA SOUDHA, BENGALURU - 560 001

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THE CONSERVATOR OF FOREST ARANYA BHAVAN, MALLESHWARAM, BENGALURU - 560 027

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Digitally signed by GAYATHRI N Location: High Court of Karnataka

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THE DEPUTY CONSERVATOR OF FOREST BENGALURU URBAN DIVSION, ARANYA BHAVAN, BENGALURU - 560 002

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…APPELLANTS

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(BY SRI. B.RAJENDRA PRASAD, HCGP)

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AND:

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SRI. R SHANKARAPPA S/O LATE RAMAKRISHNAPPA, AGED 58 YEARS, R/AT NO.31, KENCHANAHALLI IDEAL TOWNSHIP, RAJARAJESHWARI NAGAR, BENGALURU - 98

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WA No. 1439 of 2018

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THE EXECUTIVE ENGINEER BESCOM, KENGERI SUB-DIVISION, KENGERI, BANGALORE-560098

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THE ASST.EXECUTIVE ENGINEER BESCOM, KENGERI SUB-DIVISION, KENGERI, BENGALURU - 560 098

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…RESPONDENTS

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(BY SRI. M.R.NAIK, SENIOR COUNSEL FOR SRI. H.N.BASAVARAJU, ADVOCATE FOR R1; MISS/SMT. ANITHA KRISHNA MURTHY, ADVOCATE FOR SRI. P.PRASANNA KUMAR, ADVOCATE FOR R2 & R3)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO i) ALLOW THE WRIT APPEAL; ii) SET ASIDE THE ORDER DATED 20/1/2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WRIT PETITION NO.2/2014 [GM-FOR] IN THE INTEREST OF JUSTICE; b) GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

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WA No. 1439 of 2018

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JUDGMENT

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Sri.B.Rajendra Prasad, learned HCGP for the appellant.

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Sri.M.R.Naik, learned Senior Counsel for Sri.H.N.Basavaraju, learned counsel for respondent No.1.

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Smt/Ms. Anitha Krishna Murthy, learned counsel for Sri.P.Prasanna Kumar, learned counsel for respondent Nos.2 and 3.

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This intra Court appeal emanates from the order dated 20.01.2017 passed by the learned Single Judge, by which the writ petition preferred by respondent No.1 (hereinafter referred to as 'the petitioner') has been allowed and notice dated 30.11.2013 issued by the appellants (hereinafter referred to as 'the respondents') under Section 2 of the Forest (Conservation) Act, 1980 has been quashed. In order to appreciate the grievance of the appellants, few facts need mention, which are stated infra.

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The Gazette Notification dated 08.03.1951 was

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issued in respect of the land bearing Sy.No.21 at

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WA No. 1439 of 2018

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Kenchanahalli Village by which one Smt.B.Sundhari was granted 5 acres of land for an upset price of Rs.25/- per acre. Thereafter, an official memorandum dated 12.10.1951 was issued by the Sub Divisional Officer and grant certificate in Form No.II was issued in favour of the aforesaid Smt.B.Sundhari. The grant of land in her favour was reflected in the Register of Darkhasts (Annexure-D). A copy of the registered record of rights (Annexure-E) indicates that mutation entry was also effected in favour of the aforesaid Smt.B.Sundhari. On phoding of the land, the

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same was re-numbered as Sy.No.54, which is shown in Tippani extract (Annexure-F) and is followed by the entry in Revision Settlement Akar Bandh (Annexure-G).

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On the death of the aforesaid Smt.B.Sundhari,

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her son, namely, Shivaram Singh submitted an application on 08.06.2001 seeking Khata transfer. Thereupon, the Khata transfer was sanctioned in his favour and by the registered sale deed dated 22.03.2002, son of the original grantee, namely, Shivaram Singh sold in favour of the

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WA No. 1439 of 2018

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petitioner. A confirmation deed was also executed by his other brothers. Thereafter, an order of conversion was passed on 25.10.2002 and the land was converted for non agricultural purposes. The name of the petitioner was also mutated in the records as prayed thereof. The respondent thereupon issued a notice to the petitioner pursuant to which an enquiry was held and the enquiry report was submitted on 29.08.2013 by the Deputy Conservator of Forests to the Chief Conservator of Forests, in which it is stated that the petitioner has produced all the documents pertaining to his title.

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Thereafter, a notice dated 30.11.2013 was issued by the Deputy Conservator of Forests to the petitioner inter alia on the ground that by a notification dated 29.05.1896, the land in question has been reserved

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as Forest Land. The petitioner was therefore asked to submit the documents.

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The petitioner assailed the validity of the aforesaid notice in a writ petition. The learned Single

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WA No. 1439 of 2018

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Judge by an order dated 20.01.2017 quashed the impugned notice inter alia on the ground that the same is marked by total non application of mind and has been issued without taking into account the materials available on record. However, learned Single Judge has held that if fresh materials come to surface and if they warrant of holding enquiry, then such notice can be issued again. In the aforesaid factual background, this appeal has been filed.

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Learned Additional Government Advocate

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submitted that respondents had merely issued a notice dated 30.11.2013 to the petitioner and therefore, learned

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Single Judge ought not to have interfered with the impugned notice and should have relegated the petitioner for submitting the explanation in the proceedings which was initiated against him by the Deputy Conservator of Forests.

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On the other hand, learned Senior Counsel for the petitioner has submitted that in the light of the

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WA No. 1439 of 2018

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materials on record, the learned Single Judge has rightly concluded that the land in question is not a Forest Land and therefore, held that the notice suffers from vice of non application mind. It is also pointed out that the learned Single Judge has reserved liberty to the respondents that on finding any subsequent material to establish the land as forest land and in case such a subsequent material warrants holding of enquiry, then such notice can be issued again. It is also contended that there can be no unilateral determination of the nature of the land and the burden is on the respondents to prove that the land in question is a Forest Land, which they have failed to discharge. In support of the aforesaid submission, reliance has been placed on the decisions of the Hon'ble Supreme Court in Elizabeth Jacob Vs. District Collector, Idukki & Ors.¹ and Government Of Andhra Pradesh vs Thummala Krishna Rao & Anr² .

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1 (2008) 15 SCC 166

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2 (1982) 2 SCC 134

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WA No. 1439 of 2018

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We have considered the submissions made on

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both sides and have perused the records. The following facts emerge from the record:

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i) By notification dated 08.03.1951, land measuring 5 acres Sy.No.21 at Kenchanahalli Village was granted to one Smt.B.Sundhari.

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ii) Thereafter, Sub Divisional Officer issued an Official Memorandum on 12.10.1951 with regard to the grant of land in question in favour of Smt.B.Sundhari.

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iii) A Grant Certificate was issued in favour of the aforesaid Smt.B.Sundhari (Annexure-C).

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iv) The aforesaid land Grant is reflected in Register of Darkasth (Annexure-D).

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v) Copy of Record of Rights dated 07.03.1962 (Annexure-E) also contains mutation entry in favour of Smt.B.Sundhari.

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vi) On phoding, the land bearing Sy.No.21 was renumbered as Sy.No.54 and is shown in Tippani extract as (Annexure-F).

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vii) An entry was also made with regard to the land in Revision Settlement Akar Bandh (Annexure-G).

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viii) The Original Grantee Smt.B.Sundhari made an application for Khata transfer, which was sanctioned by the respondents.

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ix) The son of the Original Grantee, namely, Shivaram Singh sold the land in question to the petitioner vide registered sale deed dated 22.03.2002. Thereafter, a deed of confirmation was executed by his other brothers in favour of the petitioner.

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x) By order dated 25.10.2022, the land in question has been converted in favour of the petitioner for non agricultural purposes.

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9. Admittedly, the respondents have not taken any

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action to set at naught the aforesaid documents. In other

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WA No. 1439 of 2018

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words, the Grant in favour of the predecessor in title of the petitioner still subsist. It is pertinent to mention here that previously also a notice was issued to the petitioner. The petitioner responded to the aforesaid notice and submitted the documents in support of his title. The Deputy Conservator of Forests submitted a report on 29.08.2013 (Annexure-T) to the Chief Conservator of Forests, in which

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it was pointed out that the petitioner has submitted the documents of title in support of his claim. However, once again a fresh notice dated 30.11.2013 was issued to the petitioner.

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The aforesaid notice has been issued in ignorance of the material available on record and suffers from vice of non application of mind. The same therefore, was rightly quashed in the facts and circumstances of the

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case by the learned Single Judge. The burden is on the State Government to prove that the land in question is a Forest Land. The aforesaid fact cannot be unilaterally assumed to be true from the respondents. On the

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WA No. 1439 of 2018

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aforesaid basis, impugned notice cannot be issued to the petitioner. It is also pertinent to note that learned Single Judge has granted the liberty to the appellants that if fresh materials come to surface and if they warrant holding an enquiry, the respondents have been granted liberty to issue notice afresh.

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For the aforementioned reasons, we do not find any ground to defer with the view taken by the learned Single Judge.

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In the result, appeal fails and is hereby dismissed.

Sd/JUDGE

Sd/JUDGE

MDS

List No.: 1 Sl No.: 29

The State of Karnataka v. Sri. R Shankarappa

Case brief

What is this about?

What did the court decide?

The State of Karnataka v. Sri. R Shankarappa

Case brief

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What did the court decide?

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