Dismissed

The State of Karnataka v. G.R Srinivas

Karnataka HC25 Sept 2023WP/6240/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging an order allowing a respondent to transport timber. The Court held that the quasi-judicial authority found the respondents committed fraud by removing trees from one location and claiming title to tree removal in another, making the order of the lower authority correct and immune to interference.

What did the court decide?

The writ petition was dismissed; the petitioners are directed to auction the timber removed by the respondent in accordance with law.

The State of Karnataka Vs G.R Srinivas — Land Acquisition | Karnataka HC (2023)

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1 - NC: 2023:KHC:34862 WP No. 6240 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 6240 OF 2011 (GM-FOR)

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BETWEEN:

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF FOREST, ECOLOGY AND ENVIRONMENT, M.S. BUILDING, BANGALORE-560001

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THE DEPUTY CONSERVATOR OF FOREST, KOPPA DIVISION, KOPPA, CHICKMAGALUR.

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…PETITIONERS

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(BY SRI. V. MANJUNATHA RAYAPPA, ADDITIONAL GOVERNMENT ADVOCATE)

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AND:

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G.R. SRINIVAS SINCE DEAD BY HIS LRS

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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1(a) SMT. B.M.PREMA W/O (DECEASED) G.R. SRINIVAS, AGED ABOUT 49 YEARS, MAJOR,

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NO.86, GUBBURU VILLAGE, MELPAL POST, KARKESHWARA, CHIKKAMAGALUR DISTRICT.

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1(b) ASHRAY G.S., S/O (DECEASED) G.R. SRINIVAS, AGED ABOUT 32 YEARS, GOVERNMENT PRIMARY, GUBBURU MADHUGUNI, CHIKKAMAGALURU DISTRICT.

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1(c) ABHIJITH S. GOWDA, S/O (DECEASED) G.R. SRINIVAS,

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AGED ABOUT 30 YEARS, GOVERNMENT PRIMARY, GUBBURU MADHUGUNI, CHIKKAMAGALURU DISTRICT.

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THE TREE AUTHORITY CHICKMAGALUR DISRICT, CHICKMAGALUR, REP. BY ITS CHAIRMAN

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…RESPONDENTS

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(BY SMT. SWAMINI G. MOHANAMBAL, ADVOCATE FOR SRI. SANDEEP PATIL, ADVOCATE FOR RESPONDENT NOS.1(a) TO 1(c); SRI. A. NAGARAJAPPA, ADVOCATE FOR RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN APPEAL NO.01/2007-08 ON THE FILE OF THE 2^ND RESPONDENT - APPELLATE AUTHORITY AND QUASH THE ORDER DATED 25.08.2009 PASSED IN APPEAL NO.01/2007-08 ON THE FILE OF THE 2^ND RESPODNENT - APPELLATE AUTHORITY AT ANNEXURE-Q AND ETC.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners have sought for a writ in the nature of certiorari to quash the order dated 25.08.2009 passed by the respondent No.2 in Appeal No.1/2007-08 and to restore the order dated 06.12.2007.

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2. The petitioners claimed that Sy.No.30 measuring

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471.38 acres of Karkeshwara Village, Balehonnur Hobli, N.R.Pura Taluk, Chickmagalur district was an erstwhile State Forest, which was later declared as a Reserve Forest. They claimed that the record of rights disclosed that the said land was classified as a State Forest. When things stood thus, the respondent No.1 and his family members claimed that 08 acres was granted in Sy.No.30 of Karkeshwara Village, in favour of four members of their family. The petitioners contend that there was no denotification or dereservation of Sy.No.30 under the provisions of the Karnataka Forest Act, 1963 or any other provisions of any other law. The petitioners claimed that some unauthorised entries were made in the Grama Namoone of Karkeshwara village from the year 1973-1974. The petitioners alleged that the name of the respondent No.1 and his family members were inserted in the revenue records with a 'different ink' and there was no corresponding date, when such entry was made and there was no signature of the competent authority. The petitioners claimed that in the revenue records from the years 1978-1979 and 1982 to 1993, Sy.

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No.30 was shown as State Forest/Reserve Forest in Column

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Nos.9 and 13. However, at Column No.10, an insertion was made showing that 20 acres of land was released for cultivation. The petitioners alleged that the ink and the handwriting therein were different from the original entries at Column No.9 and that there was no authentication for the entries in Column No.10. Therefore, it is alleged that the grant said to have been made in favour of the respondent No.1 and his family members was doubtful. The land allegedly granted in favour of the respondent No.1 and his family members were reassigned with new survey numbers 361, 362, 363 and 364. After the boundaries were fixed, the records were made out. The petitioners contend that the Phodi sketch disclosed that the land granted to the respondent No.1 and his family members was located adjacent to Sy.Nos.34 and 33. They also contend that the grantees had removed and transported the trees situated on the said land during the year 1980-1981. The petitioners contend that the Phodi sketch of the land during the year 1976 from where the trees were removed, clearly corresponded with the boundaries of the land granted in

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favour of the respondent No.1 and his family members. The petitioners alleged that after removing the trees from the land granted, they mischievously made a request to the survey authorities for durast of the records, contending that they were occupying a different land and sought for re-fixing the boundaries at a different location and accordingly, redurast was done and a different area was identified, in an area which was situated 02 kms away from the land which was earlier identified and boundaries were fixed during the year 1975-1976. The petitioners contend that when the redurast and boundaries were fixed, it was done in an area located in the reserve forest in Sy.No.30 in contravention of the provisions of the Karnataka Forest Act and Rules. The petitioners contend that this change of location was neither approved nor accepted by the Competent Authority nor the State Government and the jurisdictional forest authorities. Thus, it is contended that the action in refixing the boundaries is illegal and contrary to law.

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The respondent No.1 after relocating the land in Sy.No.30 of Karkeshwar village, made an application on

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08.10.1987 seeking permission to cut and remove the trees.

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The application was processed by the authorities and an opinion was sought from the Deputy Commissioner stating that the land was granted to the respondent No.1 and his family members during the year 1974-1975. A report was also submitted by the Assistant Conservator of Forest dated 20.12.1988 stating that the redurast was done in the year 1987 was doubtful and that the boundaries fixed in the year 1980-1981 were re-opened in the year 1987 and valuable timber and firewood were removed during the year 19811982 and Coffee Registration Certificate was issued in the year 1982. Therefore, he pointed out that irreparable loss would be caused to the Government and damage would be caused to the ecology, if permission is granted to cut the tress. In view of the report of the Assistant Conservator of Forest , the application filed by the respondent No.1 and his family members was rejected in terms of the order dated 23.01.1989. The respondent No.1 challenged the said order in W.P.No.30388/1995 which was disposed off on 16.12.1999 reserving liberty to the respondent No.1 to prefer an appeal. Consequently, the respondent No.1 filed

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Appeal No.5/2000 before the Appellate Authority which was also rejected by order dated 24.06.2004. The respondent No.1 was informed on 12.08.2004 about the rejection of this

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appeal. This was again challenged before this Court in W.P.No.37672/2004. This Court in terms of the order dated 21.12.2005, issued a direction to hold a joint survey by the Revenue and Forest Departments. Consequent thereto, a joint survey was conducted which was not based on the records of the year 1980-1981, but were based on the records of the year 1987. Based on the joint survey, a

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felling permission was granted to the respondent No.1 on 10.05.2007. The respondent No.1 felled the trees. The local residents filed a petition in public interest in W.P. No.15585/2007, which was disposed off by this Court on 28.02.2008 which, however was dismissed in view of the appeal filed by the respondent No.1 before the Appellate Authority. The petitioners claimed that in view of the aforesaid facts, they found and concluded that there was change of location and that the permission for felling was sought for in respect of a location which was different than what was granted in the year 1974. Therefore, a show-cause

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notice was issued on 09.10.2007, as to why the felling permission granted on 10.05.2007 should not be cancelled. This notice was replied by the respondent No.1, which was not satisfactory and an order dated 06.12.2007 was passed cancelling the permission and forfeiting the timber which was cut from the land. Being aggrieved, the respondent No.1 filed an appeal No.1/2007-2008, which was dismissed on 08.01.2008. The respondent No.1 then challenged it, before this Court in W.P.No.1304/2008. This Court in terms of the order dated 03.06.2009 quashed the order of the Appellate Authority and remitted the case back to the respondent No.2 to reconsider the same and to pass appropriate orders.

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The respondent No.2 allegedly, without

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considering the claim of the petitioners, allowed the appeal and set aside the order dated 06.12.2007 whereby the respondent No.1 cancelled the felling permission granted on 10.05.2007. Being aggrieved by the said order, the petitioners have filed this writ petition.

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The learned Additional Government Advocate for

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the petitioners submitted that there are enough

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documentary evidence to establish that the land granted to the respondent No.1 and his family members was not situate anywhere in Sy.No.30 of Karkeshwara village, but was adjacent to Sy.Nos.33 and 34. He therefore submits that the respondent Nos.1 and 2 having got a phodi and durasthi done, in the year 1980-1981, unlawfully removed the trees at that location and thereafter got a re-durast done by fixing the boundaries in Sy.No.30 of Karekeshwara and again applied for permission for removal of the trees. He submitted that Sy. No.30 was a State Reserve Forest, and therefore no permission can be granted to cut and remove the tress, more particularly, in view of the judgment of Hon'ble Supreme Court in the case of T.N.Godavarman Thirumulpad Vs. Union of India and ors. - (1997) 2 SCC 267.

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He further submitted that the order passed by the respondent No.2 is extremely confusing, as the respondent No.2 at one breath, holds that the respondent No.1 and his family members were occupying the land adjoining Sy. Nos.33 and 34 and that the Government had

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taken a decision to grant land to all the occupants in Sy.No.30 at the location adjoining Sy.Nos.56 and 57 and released the land by order bearing No.RD-32-LAD-62 dated 01.08.1964. He submitted that the land for the respondent No.1 and his family were earmarked in the new survey number carved out of Sy.No.30 adjoining Sy.No.56 and 57 and the tree growth was assessed by the forest department in the location adjoining Sy.Nos.56 and 57 and that the respondent No.1 and his family members were informed to pay the malki which was accordingly paid. He submitted that

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the Special Assistant Commissioner, Chickmagalur had granted the land in the new survey number adjoining Sy.No.56 and 57 to the respondent No.1 and his family members. He submitted that the respondent No.2 having held that the respondent No.1 and his family members, knowing fully well, that they have to move to the new location adjoining Sy.Nos.56 and 57, had mislead the revenue authorities in the year 1981 that the land under their occupation adjoining Sy.Nos.33 and 34 was granted to them by the Assistant Commissioner vide order dated 25.01.1974. Therefore, they got the phodi sketch of

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Sy.Nos.361, 362, 363, 364 fixed adjoining Sy.Nos.33 and 34. Thereafter they mislead the authorities and fraudulently obtained permission for felling the tress from the land adjoining Sy.Nos.33 and 34. He also held that after removing the tree growth, they changed their location to the land actually granted to them adjoining Sy.Nos.56 and 57 and again mislead the Survey Authorities that they are occupying that location and the map prepared by the Revenue Authorities is wrong and requires to be corrected. He found that the respondent No.2 had mislead the Assistant Director of Land Records by getting the durasthi done showing the land granted to them adjoining Sy.Nos.56 and 57 and again applied for permission to fell the trees. The respondent No.2 thus held that the respondent No.1 and his family members had committed fraud on the Government by removing the tress from the location adjoining Sy.Nos.33 and 34, which they did not own. Hence, the learned Additional Government Advocate submitted that the respondent No.2 instead of dismissing the appeal, directed the petitioners to file criminal case against the respondent

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No.1 and his family members and also to file appropriate suit

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for recovery to recover the loss caused to the Government.

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Learned Additional Government Advocate contended that when the respondent No.2 had categorically found that the respondent No.1 and his family members had mislead the Revenue and Survey Authorities, to fix the land granted to them at two locations and had removed the trees at the first location, they were not entitled to remove the trees at the second location. He submitted that this amounted to unjust enrichment by the respondent No.1 and his family members. He contends that the respondent No.1 did not challenge the order passed by the respondent No.2 and therefore, he had tacitly admitted the fraud committed by him and his family members and therefore, the felling permission granted to the respondent No.1 on 10.05.2007 was rightly cancelled by the petitioners. He therefore, contended that the impugned order is liable to be set aside.

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Per contra, the learned counsel for the respondent No.1 contended that the land in Sy.No.30 measuring 08 acres, was granted on 25.01.1974 to four

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persons belonging to a joint family. At a partition, the entire extent fell to the share of the respondent No.1. He claimed that the malki value of the trees standing on the land was assessed and paid. During the year 1980-1981, the area was surveyed and bifurcated from the parent Sy. No.30 and were reassigned Sy. Nos.361, 362, 363 and 364. Later on 08.10.1987, an application was filed for permission to fell the trees. After obtaining an opinion from the revenue department represented by the Deputy Commissioner, who opined that on 11.03.1988, the malki value was paid at the time of grant and that the respondent No.1 possessed right over the trees. Despite the opinion, the permission was rejected on the ground that there is a change in location of the survey numbers and that they could not identify the property. The respondent No.1 challenged the same in W.P.No.37672/2004 which was disposed off on 21.12.2005 directing a joint survey and identification of the land granted, in presence of the respondent No.1. Consequently, a joint survey was conducted and the survey numbers were identified, and a permission was granted on 10.05.2007 to fell the trees. Out of 135 trees, that were identified, the

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Deputy Conservator of Forest, Koppa granted permission in respect of 104 trees. The respondent No.1 felled the trees and stocked the same on the land. When he applied for transport permits, the Deputy Conservator of Forest issued a show-cause notice calling upon the respondent No.1 to reply to the complaints lodged by certain individuals who alleged that there was a change of the location of the survey numbers and that the trees were removed from the earlier location. Though the respondent No.1 filed a reply, regarding the payment of malki , identification of survey numbers and

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the joint survey, which indicated that he was not in possession of any other land, the Deputy Conservator of Forest passed an order rejecting the request for transport permits and confiscated the timbers stocked in the land. Aggrieved by this, the respondent No.1 filed an appeal before the respondent No.2 along with an application for stay of the order passed by the Deputy Conservator of Forest. The Appellate Authority not only rejected the application, by order dated 08.01.2008, but also held that the confiscation of the timber was valid. The respondent No.1 was therefore, forced to file W.P.No.1304/2008. This Court by order dated

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03.06.2009, allowed the writ petition and remitted the case

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back to the respondent No.2. After remand, the respondent No.2 held that the value of the trees standing on the land,

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was duly paid at the time of grant and therefore, the right over the trees belonged to the respondent No.1 and as such, the transport permit ought to have been issued in favour of the respondent No.1. Thus, by order dated 25.08.2009, the respondent No.2 allowed the appeal and set aside the order of Deputy Conservator of Forest confiscating the timber. He contended that instead of complying with the directions of the respondent No.2, the petitioners have filed the present petition after one and half year from the date of impugned order. He contended that the petitioners have failed to produce any documents to show that the respondent No.1 had infact applied for permission to fell the tress in the land adjoining Sy.Nos.33 and 34 and therefore, the refusal to grant the transport permit is illegal.

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The learned counsel for the petitioners as well as

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the learned counsel for the respondent No.1 have reiterated the above contentions.

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The learned counsel for the respondent No.1 has

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also placed on record a copy of the sketch, where the land belonging to the respondent No.1 was identified on 02.04.1972. He has also placed on record an endorsement dated 27.08.2007 issued by the Deputy Conservator of Forest, Koppa, acknowledging that the value of the trees in Sy.Nos.361, 362, 363 & 364 were paid at the time of grant. He has also placed on record the map of the joint survey conducted pursuant to the order passed by this Court in W.P.No.37672/2004 dated 21.12.2005 and the P.T. Sheet of Sy.Nos.361, 362, 363 and 364. He therefore submits that the petitioners cannot deny the permission to transport the timber.

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A perusal of the impugned order discloses that the respondent No.2 had held as follows:

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"this map and the testimony given by the Panchas of the village proves that Sri.Srinivas, Shankaregowda, Rajappa and G.R.Jayaram were occupying the land adjoining to the Sy.Nos.33 and 34. The Government has taken a decision to grant land to all the occupants in Sy.No.30 at the location adjoining to Sy.Nos.56 and 57 of

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Karkeshwara village and released the land through its order bearing No.RD-32-LAD-62 dated 01.08.1964 in the year 1964. No land has been released by the Government adjoining to the Sy. Nos.33 and 34. The land for Sri. Srinivas, Shankaregowda, Rajappa and G.R.Jayaram were also earmarked in this new Sy.No. carved out of Sy.No.30 adjoining to Sy.Nos.56 and 57. Tree growth was assessed by the Forest Department in this location adjoining to Sy.Nos.56 and 57 and Sri. Srinivas, Shankaregowda, Rajappa and G.R.Jayaram were informed to pay the malki value for this piece of land adjoining to Sy.Nos.56 and 57. Sri. Srinivas, Shankaregowda, Rajappa and G.R.Jayaram, have paid the malki value for the tree growth in the location adjoining to Sy Nos.56 and 57. The Special Assistant Commissioner (Darakhast) Chikmagaluru, through his Order No.SPL/DRDN-280/72-73 dated 25.01.1974 has granted the land in the new survey number carved adjoining to Sy.Nos.56 and 57 to Sri.Srinivas, Shankaregowed, Rajappa and G.R.Jayaram.

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So, Sri.Srinivas, Shankaregowed, Rajappa and G.R.Jayaramknowing fully well, that they will have to move to the new location, adjoining

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to Sy.Nos.56 and 57, have mislead the revenue authorities and forest authorities in the year 1981 that the land which is under their present occupation adjoining to Sy.Nos.33 and 34, has only being granted to them by the Special Assistant Commissioner (Darakhast), Chikmagalur in SPL/DRDN-280/72-73, dated 25.01.1974. So, they got the phodi sketch SRT01/1976-77 of Sy.Nos.361 362, 363 and 364 adjoining to Sy.Nos.33 and 34 created in their favour by misleading the Revenue Authorities. Then by misleading this Forest Authorities, they have fraudulently obtained permission for felling of trees, as per this phodi sketch form the land adjoining to Sy Nos.33 and 34.

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After removing the tree growth from this location, they have changed their location to the land actually granted to them adjoining to Sy.Nos.56 and 57. After occupying this land, they again misled the durasthi authorities that they are present only on this location since beginning and map prepared by Revenue Authorities is wrong and requires to be corrected. Having been mislead by this fraudulent people, the Assistant Director of Land Records has done the durasthi showing the land granted to them adjoining to Sy.Nos.56 and 57.

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After getting the records corrected in their favour for the location adjoining to Sy.Nos.56 and 57, they again applied for the tree felling permission for the trees in the new location. This shows that Sri.Srinivas, Shankaregowed, Rajappa and G.R.Jayaram have committed a fraud on the Government. They have removed the trees from the location adjoining to Sy.Nos.33 and 34 which they did not own and those trees should have survived till today "

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A perusal of the documents furnished by the petitioners shows that the land bearing Sy.No.30 of Karkeshwara village was a State Forest. Annexures - F series which are the phodi of the land granted to Sri.Srinivas, Shankaregowda, Rajappa and G.R.Jayaram shows that the land bearing re-Sy.Nos.361, 362, 363, and 364 were all identified adjacent to Sy.Nos.33 and 34 of Karkeshwara Village. Annexure-G is the darkasth Phodi sketch which clearly shows that Sy.Nos.361, 362, 363 and 364 were all located adjacent to Sy.Nos.33 and 34 of Karkeshwara village. Annexure-H is the subsequent sketch which shows that Sy.Nos.361, 362, 363 and 364 were identified adjacent to Sy.No.56. Annexure-J which is the sketch prepared

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showing block 'A' and block 'B' namely, the land in Sy.Nos.361, 362, 363 and 364 adjacent to Sy.Nos.33 and 34 and the land bearing Sy. Nos.361, 362, 363, and 364 adjacent to Sy.Nos.56 shows that both the lands were situated away from each other. Thus, the respondent No.1 had committed a fraud in first getting their lands identified adjacent to Sy. Nos.33 and 34 and removing the trees therein and thereafter getting the land identified at a different location and then filed an application seeking permission for felling the trees in the new location.

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The documents furnished by the respondent No.1

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shows that the malki was paid for the trees at the time of the grant in the year 1974-1975. The sketch furnished by the respondent No.1 also shows that Sy.Nos.361, 362, 363 and 364 were identified adjacent to Sy.Nos.56 and 57 and not adjacent to Sy.Nos.33 and 34. Therefore, as rightly found by the respondent No.2 that respondent No.1 and his family members have tried to remove the trees at two different locations, claiming title under one grant by the State Government.

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14. The respondent No.2 has scoured through

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various documents and has returned a finding which cannot be upset in a writ petition under Article 226 of the Constitution of India. Be that as it may, the respondent No.1 based on the permission granted on 10.05.2007, has felled the trees. However, the request of the respondent No.1 for permission to transport the trees is rejected by the petitioners. Therefore, no useful purpose would be served in keeping this petition alive.

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The contention of the petitioner that the respondent No.2 has directed the petitioners to prosecute the respondent No.1 and to file appropriate suit for recovery, is though unsolicited, but yet, that was the only relief that could have been granted in the facts and circumstances of the case, as the trees were already felled by the respondent No.1.

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In that view of the matter this petition lacks merit and is dismissed .

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However, since the respondent No.1 has not

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challenged the findings recorded by the respondent No.2, it is appropriate to direct the petitioners to auction the timber

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removed by the respondent No.1 in accordance with law.

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Sd/JUDGE

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List No.: 1 Sl No.: 11

The State of Karnataka v. G.R Srinivas

Case brief

What is this about?

What did the court decide?

The State of Karnataka v. G.R Srinivas

Case brief

What is this about?

What did the court decide?

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