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2001 DIGILAW 84 (KAR)

D. K. Mohammed Haji v. State of Karnataka

2001-01-22

R.GURURAJAN

body2001
ORDER R. Gururajan, J.—This petition deals with the cancellation of forest land granted to the Petitioner. Before I advert to the facts let me remind myself of the dictum of the Supreme Court in the matter of depletion of forest lands in this country. The Supreme Court has expressed its grave concern with regard to the devastation of forest wealth. This is what the Supreme Court has stated in Ambica Quarry Works Vs. State of Gujarat and others, AIR 1987 SC 1073 . In this connection it is necessary to refer to the 1980 Act. This was an Act passed by the Parliament to provide for the conservation of forest and for matters connected therewith or ancillary thereto. The statement of objects of the said Act is relevant. It is stated that deforestation caused ecological imbalances and led to environmental deterioration. It recognised that deforestation had been taking place on a large scale in the country and it had thereby caused widespread concern. With a view to checking further deforestation, an Ordinance had been promulgated on 25.10.1980. Facts: 2. Petitioner is in possession and occupation of Government Lands measuring four acres 10 guntas in Sy. No. 411 situated in Alike Village of Bantwal Taluk, Dakshina Kannada district. According to him he has planted coconut, arecanut, cashew nut and silver oak trees. It appears that he has also constructed a house on the land in question and is residing therein. He has made an application to the Tahsildar-Respondent No. 4 claiming for regularisation of the lands in question. The Tahsildar after obtaining no objection from the forest department granted the lands in favour of the Petitioner on 23.10.1994. He has also obtained the Saguvali chit from the revenue authorities. The Petitioner has also paid the land value and penalty and got the lands demarcated and got his name entered in the RTC records. These being the facts of the case, the forest officials started interfering with the land in question on the basis of a right in their favour. Petitioner filed a suit in OS No. 12 of 1999 on the file of the Civil Judge, Bantwal Taluk and obtained a temporary injunction which subsequently came to be vacated. An Appeal in Miscellaneous Appeal No. 31 of 1999 was filed and the appellate Court did not grant any interim order. Petitioner filed a suit in OS No. 12 of 1999 on the file of the Civil Judge, Bantwal Taluk and obtained a temporary injunction which subsequently came to be vacated. An Appeal in Miscellaneous Appeal No. 31 of 1999 was filed and the appellate Court did not grant any interim order. An unsuccessful appeal was filed in Miscellaneous First Appeal No. 5241 of 1999. During the pendency of the suit at the instance of the Deputy Commissioner, the Assistant Commissioner issued a notice dated 22.3.1999 Annexure-N. A reply was submitted by the Petitioner as per Annexure-P. Petitioner filed a writ petition before this questioning the authority of the Respondent in issuing the notice in Writ Petition No. 16403 of 1999. This Court disposed of the same by its order as per Annexure-Q. Subsequently objections were filed and thereafter the Assistant Commissioner cancelled the grant made in favour of the Petitioner and an unsuccessful appeal was filed before the Appellate Tribunal. The Tribunal directed the Petitioner to file an appeal before the Deputy Commissioner. The Deputy Commissioner dismissed the same on 27.7.1999. Appeal filed by the Petitioner before the Karnataka Appellate Tribunal against the order of the Deputy Commissioner also came to be dismissed by the tribunal by order dated 19.4.2000. In these circumstances, the Petitioner is before this Court challenging the order of the Karnataka Appellate Tribunal dated 19.4.2000, and the order of the Deputy Commissioner dated 27.7.1999. 3. Notice was issued pursuant to which Respondents have filed their detailed objections. In the statement of objections filed before this Court the Respondents have stated that the lands involved in the case on hand is a forest land. The State has no power to alter the status of the reserve forest in view of the statutory provisions under the Forest Conservation Act, 1980 and the Karnataka Forest Act, 1963. Respondents refer to various annexures filed in support of their case. 4. Learned Counsel for the Petitioner argued at great length and contended that although these lands are forest lands they have been granted after the permission from the forest officers. According to him a committee constituted in terms of Annexure-T1 Government Order No. AHFF 5 FGL 90 (Volume-2) Bangalore, dated 10th October, 1991, has regularised the same. The second argument of the Petitioner is that a notice has been issued at the instance of the Deputy Commissioner by the Assistant Commissioner. According to him a committee constituted in terms of Annexure-T1 Government Order No. AHFF 5 FGL 90 (Volume-2) Bangalore, dated 10th October, 1991, has regularised the same. The second argument of the Petitioner is that a notice has been issued at the instance of the Deputy Commissioner by the Assistant Commissioner. The Dputy Commissioner in the instant case has become a prosecutor and a judge in issuing the notice and later confirming the same in terms of the impugned order. According to him it is impermissible in law. Per contra, learned Counsel for the Government argued that these lands being forest lands the same cannot be granted by the revenue authorities without denotifying the same. It is further argued that this being not a grant in terms of the Karnataka Land Revenue Act, the complaint of want of authority is not available to the Petitioner. He relies on Section 25 of the Act. 5. After hearing the Counsel on either side, two issues arise for my consideration; a) Whether the cancellation is without jurisdiction or in the alternative whether the cancellation is in violation of Rule 25 of the Karnataka Land Grant Rules. b) Whether any bias can be attributed to the Deputy Commissioner on the facts and circumstances of the case. Re: Issue No. 1 Material facts reveal that the lands involved in the case on hand are forest lands. The grant made in favour of the Petitioner is in terms of Annexure-T1 and that was an order issued not in terms of any statutory provision but an order to regularise certain encroachments that have taken place prior to 27.4.1978. The subject as I see from Annexure-T1 speaks of regularisation of unauthorised occupation of forest lands that have taken place prior to 27.4.1978. In the preamble and in the body of the order reference is made to encroachments that have been made prior to 27.4.1978. The Government Order provides for constitution of the Taluk Level Committee in respect of encroachments where there is doubt about the encroachments having occurred prior to 27.4.1978. Petitioner admits that the lands are regularised by this committee and he relies on Annexure-B in support of his case. He argues that the grant is in terms of Rule 25 and the cancellation which has been done by the Assistant Commissioner is bad in law. Petitioner admits that the lands are regularised by this committee and he relies on Annexure-B in support of his case. He argues that the grant is in terms of Rule 25 and the cancellation which has been done by the Assistant Commissioner is bad in law. I am afraid that if I accept this argument I will be falling a prey to an argument not available to the Petitioner. Admittedly Rule 25 deals with regularisation of grant made in terms of the same said Act. Material facts reveal Annexure-T1 is nothing but an office order to meet some special circumstances with regard encroachment of certain lands and also providing for consideration only in doubtful cases. Section 25 of the Karnataka Land Revenue Act provides for inherent powers to make such order as it is necessary to meet the ends of justice. In the case on hand, an attempt has been made to regularise the forest land under the Karnataka Land Revenue Act. In the light of the inherent powers available to the Respondent under Section 25, even assuming that Rule 25 of the Land Grant Rules is not applicable, then also the setting aside of the grant cannot be said to be bad in law for this reason that it is a well settled principle of law that a subordinate legislation has to always yield to the provisions of the Act. This Court had an occasion to consider this very question in the case of Smt. A.E. Dakshayanamma Vs. Karnataka Appellate Tribunal and others, AIR 1995 Kant 341 and it was held as under: The purpose of conferring inherent power on statutory authorities and Courts is to prevent abuses of the process under the Act. In the present case, the Deputy Commissioner acting as a Revenue Court has rightly exercised the inherent powers conferred on him under Section 25 of the Act. No doubt under Rule 25 of the rules power of cancellation has been vested with the same authority which had made the grant, but this rule cannot be construed as divesting the revenue Courts of their inherent power conferred under Section 25 of the Act. It is well settled the rule has always to yield to the provisions of the Act. It is well settled the rule has always to yield to the provisions of the Act. In view of the judgment of this Court cited supra, the contention urged by the Petitioner that the impugned order is opposed to Rule 25 of the Karnataka Land Grant Rules is negatived. In this connection I may have to refer to the Forest Conservation Act, 1980. The said Act is a Central Act providing for the conservation of forests and for matters connected therewith. Section 2 of the said Act provides for restriction on the de-reservation of forests or use of forest land for non-forest purpose. Section 2 reads as under: Restriction on the de-reservation of forests or use of forest land for non-forest purpose.-Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make except with the prior approval of the Central Government, any order directing.- (i) that any reserved forest (within the meaning of the expression 'reserved forest' in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reforestation. Admittedly in the case on hand the lands in question were not de-reserved or denotified before being granted to the Petitioner. It is nobody's case that the Central Government has granted permission. Therefore this grant is contrary to Section 2 of the Forest Conservation Act. In fact the Tribunal in the impugned order notices that the thick forest would get deforested if such acts are permitted. The said finding is supported by the provisions of the Act. In this connection I may refer to the direction of the Supreme Court in the case of T.N. Godavarman Thirumulkpad Vs. Union of India and others, AIR 1997 SC 1228 wherein it was noticed as under: 4. The said finding is supported by the provisions of the Act. In this connection I may refer to the direction of the Supreme Court in the case of T.N. Godavarman Thirumulkpad Vs. Union of India and others, AIR 1997 SC 1228 wherein it was noticed as under: 4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The work 'forest' must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(I) of the Forest Conservation Act. The term 'forest land' occurring in Section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. Again in para 5 the following directions were issued; 5. We further direct as under.- I. General 1. In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply wood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cession of all such activities forthwith. In the light of the provisions of the Act and in the light of the decision of the Supreme Court, the Respondents are right in cancelling the grant. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cession of all such activities forthwith. In the light of the provisions of the Act and in the light of the decision of the Supreme Court, the Respondents are right in cancelling the grant. Re: Issue No. 2 In so far as the second contention of the impugned notice being a case of prosecutor judge, I am of the view that the said contention has no basis. As mentioned earlier, material facts reveal that a notice has been received, and the Petitioner has approached this Court in Writ Petition No. 10403 of 1999 and this Court had directed the Petitioner to file objections before the third Respondent. The Petitioner as a matter of fact accepted the judgment of this Court and submitted his objection in the case on hand. Having accepted and having filed the objections in terms of the order of this Court, it cannot be said that any bias can be attributed to the Deputy Commissioner after the order. The Petitioner is estopped from raising such contention by his conduct. Therefore I am of the view that the second contention is not available to the Petitioner. In addition I may also notice that an injunction obtained by the Petitioner got vacated and an unsuccessful appeal was filed and later an unsuccessful Miscellaneous First Appeal was filed before this Court. All the authorities have held against the Petitioner on facts. 6. The Supreme Court in the case of State of Bihar Vs. Banshi Ram Modi and Others, AIR 1985 SC 814 in the matter of depletion of forests in this country has ruled that the Forest Conservation Act was passed with a view to prevent deforestation and ecological imbalances resulting from deforestation. The Act is intended to serve a laudable purpose and it has got to be enforced strictly for the benefit of the general public. 7. The Petitioner was granted the forest land contrary to the legal provisions. Unless the Courts come down very heavily on these types of transactions of regularisation of forest lands the forest wealth would be depleted to the minimum level which is not in the interest of anybody. Forest lands are very precious for maintaining environment and ecology. 7. The Petitioner was granted the forest land contrary to the legal provisions. Unless the Courts come down very heavily on these types of transactions of regularisation of forest lands the forest wealth would be depleted to the minimum level which is not in the interest of anybody. Forest lands are very precious for maintaining environment and ecology. Valuable forest land is being gifted away to the Petitioner much against the provisions with the support of forest officials and the revenue authorities. The Tribunal has noticed that the Range Forest Officer and the Tahsildar in connivance with the Petitioner have created these documents. Therefore I deem it proper to direct the Secretary, Forest Department to hold a thorough enquiry into the matter to find out as to who is the real culprit and under what circumstances the forest officials have obliged the Petitioner in providing no objection resulting in this situation and action may be taken against those responsible for this. On the facts and circumstances of the case I deem it proper to grant a cost of Rs. 5,000/- payable by the Petitioner to the Respondents. 8. Writ petition is dismissed with a cost of Rs. 5,000/- payable by the Petitioner to the Respondents within four weeks from today.