Allowed

Smt Kanakavalli.P v. the State of Karnataka

Karnataka HC15 Nov 2024WP/14901/2015

Case brief

AI extract

What is this about?

Petitioner challenged forest encroachment orders after a seven-year enquiry delay. The court found categorical violation of Rule 71 of the Karnataka Forest Manual, quashed both orders, permitted fresh proceedings for continuing offence, and issued general directions for FIR monitoring software, web-hosting of proceedings, and satellite-based forest monitoring.

What did the court decide?

Writ petition allowed; order dated 29.03.2014 (Annexure-J/FOC No.51/2006-07) and appellate order dated 13.03.2015 quashed; liberty to respondents to conduct fresh enquiry; compliance relisted on 6 Feb

Smt Kanakavalli.P Vs the State of Karnataka — Environment and Pollution | Karnataka HC (2024)

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1 - NC: 2024:KHC:46494 WP No. 14901 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 14901 OF 2015 (GM-FOR)

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BETWEEN:

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SMT. KANAKAVALLI P., W/O. SRI.PARTHASARATHY, AGED ABOUT 44 YEARS, RESIDING AT NO.24, 2^ND CROSS, 2^ND STAGE, BASAVESHWARNAGAR, BANGALORE-560 079.

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…PETITIONER

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(BY SRI. NATRAJ G KOTRE, ADVOCATE)

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AND:

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Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF FOREST, M.S. BUILDING, BANGALORE-560 001.

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THE APPELLATE AUTHORITY AND CHIEF CONSERVATOR OF FORESTS, BANGALORE CIRCLE, ARANYA BHAVAN, 18^TH CROSS, MALLESHWARAM, BANGALORE-560 003.

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THE DEPUTY CONSERVATOR OF FORESTS, RAMANAGARA REGIONAL DIVISION, RAMANAGARA-562 108.

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THE ASSISTANT CONSERVATOR OF FOREST, RAMANAGARA SUB-DIVISION, RAMANAGARA-562 108.

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THE RANGE FOREST OFFICER, RAMANAGARA RANGE, RAMANAGARA-562 108.

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…RESPONDENTS

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(BY SRI. N.B. PATIL, AGA)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXUREH DATED.29.3.2014 IN FOC NO.51/2006-07 PASSED BY THE R- 4 AND QUASH ANNEXURE-J DATED.13.3.2015 PASSED BY THE R-2 IN APPEAL NO.201/2014-15 AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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The petitioner is before this Court seeking for the following reliefs:

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(a) This Hon'ble Court may be pleased to issue a writ of certiorari or any other quashing Annexure-H dated 29.03.2014, in FOC No.51/2006-07 passed by the 4^th respondent and quash Annexure-J dated 13.03.2015 passed by the 2^nd respondent in Appeal No.201/2014-15.

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b) ISSUE any other appropriate writ or order or direction as this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity."

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The petitioner claims to be purchaser of 4 acres 28 guntas in Sy.No.35 of Basavanapura village, Ramanagara Taluk and District, where he has constructed a resort by name Rotary Hill View Resorts by obtaining necessary licenses.

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Respondent No.5-Range Forest Officer had received a report from the Forest Guard that the aforesaid construction is an encroachment of the forest land and therefore, offences had been committed under Karnataka Forest Act, 1963 and as such, FIR in FOC No.51/2006-07 came to be registered on 04.11.2006.

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Respondent No.3 on 18/22-11-2006 had appointed the Range Forest Officer - respondent No.5 as the Enquiry Officer which order came to be received by respondent No.5 on 25.11.2006. However, even before the said appointment had been made a notice of enquiry had been issued on 17.11.2006, the

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enquiry report itself was submitted much later in the year 2013, and proceedings have been taken up for offences under Section 24(g) (gg) 73 (d) of the Karnataka Forest Act, 1963 and Rule 41 (2) of Karnataka Forest Rules, 1964.

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The Magistrate had permitted RFO-respondent No.5 to conduct the investigation on 09.04.2013. Thereafter, the petitioner had filed an application under 239 of Cr.P.C., which came to be dismissed by the Magistrate, a challenge to the same came to be allowed in Crl. Rev. Petition No.53/2016 by the III Additional District & Sessions Judge, Ramanagara, vide order dated 16.12.2017.

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In the meanwhile, respondent No.4 had in proceedings initiated under Section 64(a) held the petitioner to have encroached upon forest land, which is challenged by the petitioner before respondent No.2, which came to be dismissed and it

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is aggrieved by those orders that the petitioner is before this Court.

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Sri. Natraj G. Kotre, learned counsel for the petitioner would submit that any enquiry which is required to be conducted, has to be conducted within fifteen days in terms of Rule 71 of the Karnataka Forest Manual.

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In the present case he submits, if the enquiry had commenced on 04.11.2006 the report ought to have been filed by 19.11.2006. However, in terms of the enquiry report itself, it is clear that the enquiry commenced on 04.11.2006 and ended on 31.03.2013, which is in violation of Rule 71 of the Karnataka Forest Manual.

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His further submission is that even this Enquiry Officer was appointed on 18/22-11-2006 which order was received by the Enquiry Officer on 25.11.2006. However, a summons has been issued much earlier on 17.11.2006 even before the order was passed and

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communicated to the Enquiry Officer. Thus, he submits that the enquiry proceedings have been commenced on 17.11.2006 by a person who is not even appointed as an Enquiry Officer.

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Lastly, he submits that the proceedings which had been initiated against the petitioner under Section 24 (g) (gg) 73 (d) and Rule 41 (2) have ended in the discharge of the petitioners in Crl. Rev. Petition No.53/2016 and as such, he submits that the orders passed by respondent Nos.2 and 4 at Annexures H and G respectively are required to be quashed.

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Learned Additional Government Advocate in reply would submit that the land in Sy.No.35 of Basavanapura village is forest land and being notified as a State Forest on 17.09.1917 by relying upon the survey sketch produced along with the objections he submits that the said land is situate within forest land and for that reason the action is taken.

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Heard Sri. Natraj G. Kotre, learned counsel for the petitioner and Sri. N.B. Patil, learned counsel for the respondents and perused the papers.

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The Karnataka Forest Act, 1963 and the rules thereof, as also the Karnataka Forest Manual prescribe certain procedures to be followed, when there is any violation of the above and/or any offences committed. It is therefore, required of the authorities to follow the said procedure in a proper manner as and when there are any violations of the Act, and/or any offences committed.

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The submission of learned Additional Government Advocate is that Sy.No.35 is a notified State Forest and it is for that reason that action has been taken against the petitioner. The submissions made as also the procedure followed as indicated above indicates several lacuna on the part of the respondentsAuthorities. Admittedly, the forest guard had submitted a report as regards encroachment and on

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that basis FIR in FOC No.51/2006-07 was registered on 04.11.2006.

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A perusal of the enquiry report which has been produced would also indicate that the enquiry commenced on 04.11.2006 and ended on 31.03.2013.

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In this regard, the argument of the learned counsel for the petitioner is two folds firstly, there is a violation of Rule 71 of the Karnataka Forest Manual and secondly, the Enquiry Officer commenced the enquiry even before he was appointed as an Enquiry Officer.

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Rule 71 reads as under:

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"71. (1) If as a result of the enquiry and investigation, the Forest Officer has reasons to believe that an offence has been committed, he will prepare a report in Form No. 23 and submit it, with the original reference of the First Information Report and any other records relating to the case, to the Divisional Forest Officer in case where the value of the produce involved is above Rs. 50.00. Except in very rare cases it should not be necessary for the Officer conducting the investigation to delay the report for mare than 15 days after receipt of

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the First Information Report. Where a longer time is found necessary to complete the investigation, the Officer should submit a preliminary report to the Divisional Forest Officer, explaining the circumstances of the case and indicating when the enquiry report will be made finally.

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(2) The enquiry report should contain all the particulars connected with the offence for which evidence should be adduced. The locality should be described so as to admit of its easy verification ; if known by local name, that name should be stated. If it is a reserved forest the name of the Reserve forest should, in addition be stated and it is the duty of the prosecution to prove that the area have been duly constituted as a Reserve Forest.

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(3) The history of the case should refer briefly to the circumstances of the case, with a statement of the nature of the enquiry held and the date when it was held; it should, in fact, supplement the particulars connected with the case which are entered elsewhere against the appropriate column in the report; and no statement should be made for which definite evidence is not forthcoming. On the other hand all matters should be reported which will help the authority having power to dispose off the case, in coming to the correct finding as to the magnitude of the guilt and the punishment to be awarded to the accused. In otherwards all aggravating or extennuating circumstances should be stated. It need hardly be repeated that, wherever possible the value of damage done to the forest for which compensation should be claimed should be stated.

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(4) The enquiry report is to be sent to the Divisional Forest Officer in cases where the value of the produce involved is over Rs. 50 and shall be accompanied by all the records and data such as :

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1. Mahazar drawn up.

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2. Statement of the accused.

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3. Statement of the witnesses.

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4. List of Forest produce or other material seized.

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5. List of Tools, vehicle and impliments seized.

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6. Seizure report.

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7. Value for the damage caused to the forest.

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8. Acknowledgement for the summons issued.

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9. Details of search out if any, along with the search list.

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10. Receipts concerning:impounding of cattel and handing over of seized property to temporary custody pending final disposal of the case,

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11. Details about the disposal of the perishable property.

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12. Remarks of the Officer, conducting investigation and such other relevant information as is required."

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Rule-71 mandates that except in very rare cases, it should not be necessary for the Officer conducting the investigation to delay the report for more than fifteen days after receipt of the First Information Report and were a longer time is necessary to complete an investigation the Officer should submit the preliminary report to the Divisional Forest Officer,

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explaining the circumstances in the case and indicating when the enquiry report will be made finally. Therefore, a mandate that on a First Information Report being received enquiry is required to be completed within fifteen days and if there is delay an explanation thereof, along with preliminary report is required to be filed.

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In the present case admittedly, the First Information Report was received and registered on 04.11.2006 in FOC No.51/2006-07, enquiry was conducted until 31.03.2013 and the report was submitted thereafter. There is no preliminary report which is submitted nor an extension of time sought for. Therefore, there is clear and categorical violation of Rule 71 of the Karnataka Forest Manual.

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When proceedings were initiated and infact the offences being non cognizable, permission was sought for from the learned Magistrate which was granted on 09.04.2013 till 09.04.2013 there is no

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permission which has been sought for by the respondents-Officers seeking for investigation though Enquiry Officer had been appointed.

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In the said proceedings an application under Section 239 of Cr.P.C. was filed by the petitioners, which though rejected by the Magistrate was allowed by the Revision Court. No application under Section 239 of Cr.P.C could be filed in a summons case. In fact in Crl. Rev. Petition No.53/2016 also no particular objection has been taken by the respondents-Officers as regards the non-applicability of Section 239, which has resulted in the said Crl. Rev. Petition being allowed in revison resulting in the application under Section 239 of discharge being allowed and the petitioner being discharged.

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The above sequence of events would categorically and unimpeachably establish the lackadaisical attitude on part of the respondents-Officers in conducting the enquiry, investigation and prosecution

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though they are vested with a duty and obligation to safeguard the forest land. Except for contending that it is forest land and therefore, action has been taken the conduct of the enquiry and investigation leaves a lot to be desired, resulting in lacunae being made available to the petitioner for taking advantage of.

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There being a complete violation of Rule 71 respondent No.4 has accepted the enquiry report and passed the order on 29.08.2014 and the appeal has been dismissed 31.03.2015. Both those orders have not considered the above procedure and violation thereof, in the enquiry, which has been conducted and which has been pointed out hereinabove.

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In that view of the matter, I am of the considered opinion that the above petition is required to be allowed.

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General Directions: The lacune which had been pointed and procedural violation, which has been

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pointed out would require general directions to be issued:

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25.1 The Principal Secretary Forest Department and the Principal Chief Conservator of Forest with the assistance of the Principal Secretary e-governance Department are directed to establish a proper mechanism to ascertain and monitor the registration of first information report/enquiry into and submission of the report in terms of the applicable Rules.

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25.2 The Principal Secretary Forest Department and the Principal Chief Conservator of Forest in association with the Principal Secretary, Department of E-Governance are directed to implement a suitable software to provide for registration of first information, conduct of enquiry, filing of the enquiry report in a time bond manner

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with clear remindnor on when the reports

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have been filed so that the person who is responsible for the delay could be identified and necessary action would be taken, if there are malafide assuming that the actions taken by the Bonafide Officer, the Bona fide Officer are reminded of the dates on which the action is be taken by them.

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25.3 All quasi-judicial proceedings to be webhosted on appropriate website of the forest department, giving detail of proceedings taken up, orders passed, the dates thereof, reports filed and such other details as may be required to be bring about transparency, in a similar manner as done by the revenue department by establishing revenue court case

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management system.

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25.4 The satellite maps to be uploaded on the relevant website to be created for each forest in the state, the boundaries of the forest to be demarcated using satellite based surveys in accordance with the notification issued in relation thereto, with the relevant notification/s also being uploaded on the web-site.

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25.5 To set up a satellite based real time monitoring system to track encroachment, deforestation, construction, increase or decrease in forest areas etc.,

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25.6 A realtime update or warning system to be established to enable alerts to be sent to concerned officials as regards any of the above.

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25.7 To enable time lapse analysis of the satellite maps.

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A detailed project report as regards the above to be

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filed by 31.01,2025. In the above circumstances, I pass the following:

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ORDER

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i. Writ petition is allowed.

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ii. A certiorari is issued the order dated 29.03.2014 passed by respondent No.4 in FOC No.51/2006-2007 at Annexure-J is quashed.

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iii. The order dated 13.03.2015 passed by respondent No.2 in Appeal No.201/2014-15 is quashed.

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iv. Liberty is however, reserved to respondents to initiate and register fresh first information report and conduct fresh enquiry in accordance with the law by taking note of the above observations, considering that the encroachment of the forest land is a continuing offence.

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v. Though the above petition is disposed off, relist

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on 6^th February 2025 at 2.30 p.m. to report compliance.

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SD/(SURAJ GOVINDARAJ) JUDGE

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TMP List No.: 1 Sl No.: 28

Smt Kanakavalli.P v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Kanakavalli.P v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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Issues for consideration

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