The Chief Secretary Vs Channegowda Dead by Lrs

THIS MSA IS FILED UNDER ORDER XLIII (i) (u) OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 24.03.2017 PASSED IN RA.NO.115/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC., BHADRAVATHI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 25.09.2013 PASSED IN O.S.NO.453/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC., BHADRAVATHI, REMANDING BACK TO THE TRIAL COURT FOR FRESH DISPOSAL IN ACCORDANCE WITH LAW.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Gopalakrishna Soodi, learned Additional Government Advocate for the appellant and Sri G.S.Balagangadhar, learned counsel for the respondents, who are plaintiffs before the Trial Court.

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Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

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A suit came to be filed by the plaintiffs in O.S.No.453/2012 on the file of the I Addl. Civil Judge and JMFC, Bhadravathi, with the following prayer:

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“(i) Plaintiffs prays for a judgment and decree against the defendants 2 and 3 by declaring that the stone crushing unit of the plaintiff’s bearing License No.557 on the file of the Department of Mines and Geology, Shimoga, is in granted revenue land of schedule and is not coming in the limits of Minor Forest Area which is coming at the other side of main Bhadra Channel as contended by the 3^rd defendant Range Forest Officer, in his Order dated 16.07.2012 on his file Order No.RFO/Bava/362/2012-13, dated 16.07.2012.

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(ii) Consequential relief of injunction by restraining the defendants 2 and 3 permanently from interfering with the lawful possession with the stone crushing

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unit of the plaintiff of schedule property in any manner.

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(iii) For costs of the suit, and

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(iv) for such other reliefs as this Hon’ble Court determines to be just and proper under the circumstances of the case.”

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The suit, on contest, came to be dismissed on preliminary

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issue Nos.3 and 6 which read as under:

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(3) Whether the defendant no.1 and 2 proves that suit of the plaintiff is not maintainable as per Sec.9 of CPC?

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(6) Whether the defendant proves that suit of the plaintiff is not maintainable?

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The Trial Court held against the plaintiffs and dismissed the suit.

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Being aggrieved by the same, appeal came to be filed by the plaintiffs in RA No.115/2013.

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Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and allowed the appeal and remitted the suit to the Trial Court for fresh disposal in accordance with law inter alia holding in paragraph Nos. 30 to 38 as under.

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“30. Learned AGP for the defendants has relied upon the following decision:

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(2007) 15 SCC 744 [State of Karnataka and others Vs. I.S.Nirvane Gowda and others], wherein it is held that,

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“Environment Protection and Pollution Control – Forests – Reserve Forests – Forest land – Title to the land – Competence of Revenue Authorities to confer – Land included in State reserve forest – Mere facts that saguvali chits were given by Tahsildar of Revenue Deptt. to respondents and entries were made in revenue records, held, is of no consequence and would not confer title to the land – Moreover, Revenue Authorities were not competent to deal with the property which formed part of reserve forest – High Court in second appeal erred in interfering with concurrent findings in this regard recorded by trial court as well as the first appellate court – Civil Procedure Code, 1908 – S.100 – Concurrent findings of fact – Consideration and interference with.”

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31. I have perused the decisions. It is true that when a statutory authority fails to act as per law then the Civil Court gets jurisdiction to decide the matter. It is also true that though saguvali chit is issued with respect to a forestland as if it is a revenue land, then no title will be conferred on the person who obtains saguvali chit with respect to the said land.

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32. In the present case, the trial Court has come to the conclusion that Civil Court has no jurisdiction to entertain

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the suit as it is barred by Section 9 of CPC and also barred under Section 3 of the Mines and Minerals (Development and Regulation) Act, 1957. But the said provision of law deals with definitions of some terms and does not bar jurisdiction of the Civil Court to entertain the suit. Further the trial Court has observed that plaintiffs have not produced license as required under law. But the said aspect has to be considered at full dressed trial.

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33. In the case on hand plaintiffs have produced RTCs and mutation register extracts, licenses, sketch, village map, grant certificate and 11E sketch. As per the documents plaintiff No.2 was granted suit schedule property and plaintiffs are carrying on stone crushing unit in the said land. Plaintiffs have specifically contended that suit land is a revenue land and not a forest land. But the defendant No.3 after inquiry held that suit land is situated in forest and plaintiffs have to vacate the said land.

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34. According to the plaintiffs, Forest Settlement Officer is the competent authority to conduct inquiry and not defendant No.3. But defendant No.3 held inquiry as per the direction of the Hon’ble High Court of Karnataka. As such, defendant No.3 should obey the orders of the Hon’ble High Court and he can not say that I am not the proper authority to conduct inquiry.

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35. Be that as it may, the learned trial Judge has observed that as per Rule 40(2)(V) of Karnataka Forest Rules, 1969, jurisdiction of Civil Court is barred. But Rule 40 is with regard to “grant of land for coffee or cardamom

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cultivation”. The said provision of law is extracted here below:-

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40: (1). Grant of land for coffee or cardamom cultivation – No land shall be assigned for coffee cultivation or cardamom cultivation, unless the Director of Research Coffee Board or the Cardamom Development Officer as the case may be in opinion that the land is prima facie fit for coffee or cardamom cultivation, as the case may be.

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(2) Grant of lands assigned for coffee or cardamom cultivation shall be liable to be cancelled and the land liable to be resumed to Government. Without payment of compensation for any improvement that the grantee might have effected if coffee or cardamom as the case may be, is not grown within a period of five years from the date of issue of saguvali chit or if some other crop has been grown.

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(3) Copies of the orders assigning lands for coffee or cardamom cultivation shall be sent to the Director of Research, Coffee Board in case of lands assigned for coffee cultivation and to the Cardamom Development Officer in case of lands assigned for cardamom cultivation with a request to give a report once a year after the land is ready for cultivation regarding the progress of the coffee or cardamom cultivation, as the case may be.”

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36. The said Rule 40 does not bar jurisdiction of the Civil Court. Therefore observation of the learned trial Judge is not correct. However, Section 42 of the Karnataka Forest Act, 1963 deals with Bar of Suits. The said provision is extracted here below:

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“Bar of suits – No order of the State Government or Forest Officer not below the rank of a Divisional Forest Officer under this chapter and no notification issued by the State Government under section 39, shall be liable to be questioned in any court of law.”

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37. As per the said section the order passed by the Forest Officer not below the rank of Divisional Forest Officer cannot be challenged in any Court. In this case, it is the Range Forest Officer who has passed orders who is below the rank of Divisional Forest Officer. As per Section 42, the order passed by the Range Forest Officer can be challenged in a Civil Court, that is what plaintiffs have done.

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38. Further the saguvali chit issued with respect to a land which is included in reserve forest does not confer any title. But in this case, the contention of the plaintiffs is that their land is a revenue land. Though the Range Forest Officer has come to the conclusion that it is a forestland, the said order is under challenge before the Court. But this Court need not consider the said aspect. Because this Court has to decide only with regard to maintainability of the suit. As aforesaid, the suit is maintainable. Hence the orders passed by the trial Court warrants interference by this Court. Accordingly, I answer point No.1 in the affirmative.”

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Being aggrieved by the same, the State has preferred the present appeal on the following grounds:

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The Appellate Court has failed to observe that the suit schedule property is a forest area and it is public at large who will be the looser.

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The Appellate Court has further erred in unjustifiable interfering with the well settled order passed by the trial Court in O.S.No.453/2012.

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The impugned judgment passed by the lower Appellate Court is result of non application of mind to the facts and circumstances of the case. Therefore, on all the above grounds the impugned judgment passed by the lower Appellate Court is liable to be set aside and suit filed by the respondents has to be dismissed.

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That the lower Appellate Court failed to look in to the specific provision of law namely Section 9 of the Code of Civil Procedure and 80 of the Code of Civil Procedure and failed to observe the Provision of Rule 40 of Karnataka Forest Rules and Section 3 of Mines and Minerals (Regulation and Development Act, 1953) and as therefore erred in setting aside the order of the trial Court and remanding the suit of the plaintiff for fresh consideration before the trial Court.

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The Lower Appellate Court failed to appreciate that mere saguvali chit does not confirm any

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title on the suit schedule property and further fails to appreciate the document filed by the Appellant to show that the suit schedule property belongs to Reserve Forest.

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The Lower Appellate Court as further failed to appreciate the passed by the trial Court judgment and decree passed by the trial court.

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The order passed by the Lower Appellate Court in remanding the matter to the trial court upon reversed the judgment and decree rendered in O.S.No.453/2012 in parse illegal, against to law and it is clear contravention of settled principles in law, as such it is liable to be set aside.

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The Lower Appellate Court has erred in not noticing the provision of Section 40 of Karnataka forest Act. Therefore, the impugned order passed by the Lower Appellate Court as to be set aside.

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The Lower Appellate Court has failed to observe that this Honb’le Court was pleased to pass an order in W.P.No.4281/2012 on 14.06.2012 directing Respondent herein to appear before the Range Forest Officer, Bhadravathi Range, Bhadravathi with regard to stone crushers is in compliance with all criteria and Rules promulgated by State Government. Therefore, the Range Forest Officer of Bhadravathi has passed speaking order dated 16.07.2012.

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The Lower Appellate Court was not proper in deciding the order passed by the Range Forest Officer and

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further was not right in declaring the Range Forest officer is not the person incharge.

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The Lower Appellate Court has failed to give its finding maintainability of Appeal while discussing the appeal of the Appellant.”

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Sri Gopalakrishna Soodi, learned Additional Government Advocate reiterating the grounds that in the appeal memorandum vehemently contended that, the First Appellate Court grossly misdirected itself in holding that suit before the Trial court is maintainable.

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He contended that the decisions placed on record by the appellants before the First Appellate Court is not properly appreciated by the learned Judge.

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He also contended that the suit crusher unit installed by the plaintiffs is in the forest land. Therefore, license and permission from the Forest Department was necessary which is the crux of the matter, and the same has not been taken note of by the learned Judge in the First Appellate Court and therefore, sought for admitting the appeal for further consideration.

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Per contra Sri G.S. Balagangadhar, learned counsel for the respondents/plaintiffs contended that, having regard to the nature of the relief that is sought for, no permission from the Forest Department was necessary, which has been rightly considered by the First Appellate Court while holding issue Nos.3 and 6 in favour of the plaintiffs as against the finding recorded by the Trial Court and ordered for fresh adjudication of the suit on merits and therefore sought for dismissal of the appeal.

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Having heard the arguments of both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that there is a dispute as to the placement of the crusher unit inasmuch as whether the installation of the crusher unit is in the forest land or not.

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In that regard, parties are required to place on record necessary evidence, both oral and documentary. If need be, a Court Commissioner may also be appointed to find out whether

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the installation of the crusher unit is in the forest land or not, based on the documents to be relied upon by both the parties.

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Such a recourse will thrash out the real controversy between the parties insofar as the plaint prayer is concerned.

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Admittedly appellants being the defendants will have a fair chance to put forth their case and emphasize that the installation of the crusher unit is in the forest land in which case, consequential orders would be passed by the Trial Court itself.

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Unless the same is established by placing oral and documentary evidence on record as to the place where the crusher unit is installed, no decision can be taken only on the oral say of the parties or by producing the photocopies of the documents.

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Therefore, remitting the suit to the Trial Court for consideration of the suit of the plaintiffs afresh in accordance with law cannot be faulted with.

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At this stage, learned counsel for the respondents would express apprehension that if there is re-enquiry on issue Nos.3 and 6, plaintiffs would be unnecessarily put to hardship and their rights would be affected. Such an apprehension cannot be brushed aside in toto.

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If the installation of the crusher unit is in the forest land, necessarily plaintiffs’ suit has to fail. If it is not in the forest land, then Issue Nos.3 and 6 will necessarily go against the plaintiffs.

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Unless the place where the installation of the crusher unit is decided as forest land or not, no opinion can be expressed by any Court which would be detrimental to the interest of either of the parties.

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Hence, it is just and necessary to keep open Issue Nos.3 and 6 to be adjudicated afresh along with other issues, after recording a finding on the fact of installation of the crusher unit is in the forest land or not.

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