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2020 DIGILAW 1366 (KAR)

Buri Pushpamma W/o Late Aesebu v. Principal Secretary Revenue Department Multi Storied Building

2020-07-08

H.T.NARENDRA PRASAD

body2020
ORDER : In this writ petition, petitioner has sought for the following reliefs: “(a) Issue order or writ in the nature of mandamus directing the respondent No.2 to 5 not to dispossess the petitioner from the petitioner’s land bearing Sy.No.140 measuring 10 acres situated at Mogadampur village, Tq. Chincholi, Dist. Kalaburagi, without following due process of law. (b) Issue order or writ in the nature of mandamus directing the respondent Nos.2 to 5 to enter the name of petitioner to the petitioner’s land bearing Sy.No.140 measuring 10 acres situated at Mogadampur village, Tq. Chincholi, Dist. Kalaburagi. (c) Any other relief to which the petitioner is entitled may kindly be granted.” 2. Learned counsel for the petitioner submits that the similar matter in W.P.No.225710/2020 and connected matter, was disposed of by this Court on 18.06.2020. 3. The petitioner claims that the land bearing Sy.No.140 measuring 10 acres situated at Mogadampur village, Chincholi Taluk, Kalaburagi District, was granted way back in the year 1967. It is contended that by order of the Deputy Commissioner, Kalaburagi, the Tahsildar granted the said land in favour of grandfatherinlaw of petitioner. It is submitted that the petitioner is in peaceful possession and enjoyment of the land in question and has been paying the tax regularly. However, it is submitted that the tax for the latest period may not have been paid. Somewhere in the year 2003, the officials of the Department of Forest tried to evict the petitioner on the premise that the land in question is forest land. The petitioner was informed that around 60 acres in Sy.Nos.140 and 162 notified as forest lands are allegedly in unauthorized occupation of the petitioner and other villagers. It is submitted that during the said period, name of the petitioner was removed from the revenue records. Nevertheless, it is submitted that the petitioner continued to be in possession and peaceful enjoyment of the land in question. It is further submitted that off late, the forest officials are making hectic efforts to evict the petitioner from the land in question. Therefore, the petitioner is before this Court. 4. Nevertheless, it is submitted that the petitioner continued to be in possession and peaceful enjoyment of the land in question. It is further submitted that off late, the forest officials are making hectic efforts to evict the petitioner from the land in question. Therefore, the petitioner is before this Court. 4. Learned Government Advocate appearing on behalf of the respondents brings to the notice of this Court that the Assistant Conservator of Forest, Kalaburagi SubDivision has passed an order dated 15.12.2019 which would show that the local villagers including the petitioner herein had encroached upon the forest land in Sy.Nos.140 and 162 of Mogadampur village and therefore, the villagers were summoned and a summary enquiry was held. Thereafter, the order of summary eviction has been issued on 15.12.2019. At this juncture, learned counsel for the petitioner submitted that information provided in the said order is incorrect. Learned counsel for the petitioner submits that neither such enquiry was held nor the said order dated 15.12.2019 was served upon the petitioner. 5. Learned Government Advocate would further draw the attention of this Court to Section 64A of the Karnataka Forest Act, 1963 (for short ‘the Act’) to submit that where any person is in unauthorized occupation of any forest land, without prejudice to any other action that may be taken against the occupier under the other provisions of the Act, a forest officer not below the rank of an Assistant Conservator of Forest can summarily evict the unauthorized occupant. 6. However, to a pointed question posed by this Court as to how the Assistant Conservator of Forest could come to the conclusion that the petitioner is an unauthorized occupant, since they were pattadars, having been granted with the land by the competent authority of the Department of Revenue, learned Government Advocate is unable to give a satisfactory answer. Insofar as Section 64A of the Act is concerned, the proviso to clause(1) of Section 64A of the Act very clearly provides that before evicting a person under the subsection, he or she shall be given a reasonable opportunity of being heard. 7. In the light of the assertions and the documentary evidence that have been produced by the petitioner along with this writ petition, prima facie, the Assistant Conservator of Forest could not have held that the petitioner is unauthorized occupant. 7. In the light of the assertions and the documentary evidence that have been produced by the petitioner along with this writ petition, prima facie, the Assistant Conservator of Forest could not have held that the petitioner is unauthorized occupant. If an opportunity of hearing was given to the petitioner, she would have substantiated her possession and occupation of the land in question by production of title deed and revenue records. If a proper enquiry was held, it is possible that the petitioner would be able to substantiate her authorized occupation with respect to the land in question. It is also possible that the petitioner may have encroached upon land beyond what was granted to her. On enquiry, if the competent authority of the Forest Department finds that though the petitioner was granted land by the competent authority of the Revenue Department even before the notification of Sy.Nos.140 and 162 as forest lands, then the other question would arise as to whether the petitioner could be declared as unauthorized occupant of forest land. These are all questions that may arise during the course of enquiry. Since two departments of the State Government are involved in this issue, necessarily joint inspection and joint survey has to be held and recorded in the presence of the officials of both the departments as well as the petitioner. 8. Be that as it may, on a plain reading of the order dated 15.12.2019 passed by the Assistant Conservator of Forest, it does not animate such an enquiry. Therefore, the action on the part of the officials of the Forest Department including passing of the summary eviction order dated 15.12.2019, requires to be held as illegal and arbitrary. 9. During the course of argument, the learned Government Advocate had also pointed out that the officials of the Forest Department have taken up afforestation in the lands in question. It is the contention of the officials of the Forest Department that saplings have been planted in the lands in question, and they need protection till the enquiry is conducted by the competent authority. However, the said submission cannot be accepted in view of the fact that a summary eviction order even according to the respondents was issued only on 15.12.2019 and without the same being brought to the notice of the petitioner. 10. For the reasons stated above, the writ petition is allowed in part. However, the said submission cannot be accepted in view of the fact that a summary eviction order even according to the respondents was issued only on 15.12.2019 and without the same being brought to the notice of the petitioner. 10. For the reasons stated above, the writ petition is allowed in part. The order dated 15.12.2019 passed by the Assistant Conservator of Forest, Kalaburagi SubDivision, which was produced by the learned Government Advocate during the course of the hearing is hereby quashed and set aside, insofar as the petitioner is concerned. However, it is made clear that the competent authority of the Forest Department, acting under the provisions of the Karnataka Forest Act or any other statute, may proceed in accordance with law by issuing a notice to the petitioner, afford an opportunity of hearing to the petitioner, conduct joint inspection or joint survey in the presence of the officers of the Department of Forest, Revenue and the petitioner herein and thereafter proceed to pass orders in accordance with law. Till such time, the respondents are hereby directed not to dispossess or interfere in the petitioner’s peaceful possession of the land belonging to the petitioner, to the extent stated in the writ petition. 11. In the light of the said situation, it is also incumbent that the enquiry has to be conducted in a time bound manner. Therefore, the forest officials are required to hold an enquiry in accordance with law and thereafter pass orders as expeditiously as possible and at any rate within a period of three months from the date of receipt of a certified copy of this order. Till then the parties are required to maintain statusquo with respect to the possession of their respective lands. 12. As regards the second prayer of the petitioner that the respondents should be directed to reenter the name of the petitioner in the revenue records, the same cannot be granted at this stage since admittedly the entries have been removed way back in the year 2003. The petitioner is required to follow the due procedure of law as contemplated in the Karnataka Land Revenue Act to redress her grievance. The writ petition is accordingly disposed of.