Mallikarjun S/o Siddarai Suldhal v. Principal Secretary, Department of Revenue and Land Acquisition
2019-03-21
KRISHNA S.DIXIT
body2019
DigiLaw.ai
ORDER : 1. The petitioner who has been granted rights under the Provisions of Section 3(1)(a) of the Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, in respect of the land in acquisition is before this Court invoking its writ jurisdiction, inter-alia calling in question the order dated 17.10.2014 at Annexure-N made by the respondent-Karnataka Niravari Nigam Limited and the order dated 28.10.2015 made by the respondent Government at Annexure-P whereby in effect, compensation has been denied to him on the ground that the land belongs to the Forest Department and he has no rights over the same. 2. After service of notice, respondents have entered appearance; the respondent Nos. 1 to 5 are represented by learned AGA Smt. Veena Hegde and respondent Nos. 6 to 9 are represented by learned panel counsel Sri. Ramesh Misale. 3. The learned counsel for the petitioner drawing the attention of the Court to the provisions of Section 3(1)(a) of the Act submits that the respondent No. 4-Special Deputy Commissioner heading the District Level Committee has made an order dated 31.10.2015 at Annexure-M, granting certain rights to and interest in respect of 5 acres and 10 guntas of acquired land in favour of petitioner and therefore if such a land is taken away, the compensation needs to be paid. He further submits that this aspect having not been looked into by answering respondents, the impugned orders are liable to be invalidated with a direction superadded, to reconsider the matter in accordance with law. 4. The learned AGA Smt. Veena Hegde per contra submits in justification of the impugned orders, stating that the question of acquiring the land does not arise at all inasmuch as the land belongs to the Government and therefore the consequential question of granting compensation also would not arise; whatever order the District level Committee headed by the Special Deputy Commissioner has passed on 31.10.2015, the same does not result into vesting of interest in the land in favour of petitioner and therefore, if some rights are given under the Special Act, that would not be sufficient to claim compensation. 5.
5. The learned panel counsel for the Karnataka Niravari Nigam Limited submits that the petitioner cannot have any grievances against it inasmuch as the Nigam has taken this land not free of cost from the Government, and in lieu of this land, either some other land is given to the Government, or in the alternative some amount has been paid to the Government. 6. The Parliament has enacted the 2006 Act with an avowed object. Section 3(1)(a) of the Act which is relevant to adjudication of this writ petition reads as under: “3(1)(a) - Forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers - (1) For the purposes of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands, namely:- (a) right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers.” 7. The learned counsel for the petitioner is justified in submitting that certain rights to and some limited interest in the subject land are created in favour of the traditional Forest Dwellers like the petitioner herein who allegedly belongs to Scheduled Tribe and if that land is taken away, some compensation needs to be granted. This aspect having not been considered by the answering respondents in the impugned order dated 28.10.2015 at Annexure-P, there is an error apparent on the face of the record warranting indulgence of this Court. 8. The contention of the answering respondents that the Government land cannot be acquired by the Government, as a broad principle, is true. But, when the Parliament has created certain rights under a special enactment concerning the Forest lands, such an argument appears to be too farfetched. The Apex Court has explained the term ‘Property’ employed in Article 300A of the Constitution of India with broad contours and that the rights granted to the petitioner under Section 3(1)(a) of the Act by virtue of the order of the District Level Committee headed by the Special Deputy Commissioner need to be construed as ‘Property’ in the light of such a broad interpretation. 9. The learned author Sri.
9. The learned author Sri. D.D. Basu in his “Shorter Constitution of India” 4th Edition, at Page Nos. 1808 and 1809 commenting on Article 300A states as under: “Property 1 - Property, in this Article, means only that which can by itself be acquired, disposed of or taken possession of. Subject to this limitation, it is designed to include private property in all its forms and “must be understood both in a corporeal sense as having reference to those specific things that are susceptible of private appropriation and enjoyment as well as in its judicial or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others.” 4. ‘Property’ includes not only real and personal property but also incorporeal rights such as patents, copyrights, leases, chooses in action and every other thing of exchangeable value which a person may have ‘profit a prendre’ such as a right to catch fish in another’s tank, the carcass of an animal belonging to a person. 5. The word ‘property’ connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status.” 10. In the above circumstances, this writ petition succeeds in part, a Writ of Certiorari issues quashing the impugned order dated 28.10.2015 issued by the answering respondent at Annexure-P, a Writ of Mandamus issues to the respondent Nos. 1 to 4 to consider petitioner’s representation dated 29.09.2014 at Annexure-Q in accordance with law within a period of three months after hearing all the stake holders including the Karnataka Niravari Nigam Limited. 11. It is open to the answering respondents to solicit any information or documents from the side of petitioner as are required for due consideration of his representation; however in the guise of such solicitation unnecessary delay shall not be brooked. 12. Pending IAs pale into insignificance since main matter itself is disposed off. No costs.