Karnataka High Court
Mr. Mohammed Shoaib vs State Of Karnataka on 18 August, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 19674 of 2024
C/W WP No. 392 of 2021
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IN THE HIGH COURT OF KARNATAKA
AT BENGALURU R
DATED THIS THE 18TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.19674 OF 2024 (GM-FOR)
C/W
WRIT PETITION NO.392 OF 2021 (GM-FOR)
IN W.P.NO.19674 OF 2024
BETWEEN
MR. MOHAMMED SHOAIB
S/O. MR. MOHAMMED IQBAL,
AGED ABOUT 52 YEARS,
RESIDING AT NO.15,
Digitally signed by
ASHPAK INFANTRY ROAD,
KASHIMSA
MALAGALADINNI BANGALORE- 560001.
Location: High ...PETITIONER
Court of Karnataka,
Dharwad Bench, (BY SRI. CHANDAN.K., ADVOCATE)
Dharwad
AND
1. STATE OF KARNATAKA
REP BY ITS ADDITIONAL CHIEF,
SECRETARY, FOREST DEPARTMENT,
KARNATAKA GOVERNMENT SECRETARIAT,
ROOM NO. 447, 4TH FLOOR, GATE NO.2,
M.S BUILDING, BANGALORE-560001.
2. RANGE FOREST OFFICER,
OFFICE OF THE RANGE FOREST OFFICER,
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DEVANAHALLI SUB-DIVISION,
DEVANAHALLI-562110.
.... RESPONDENTS
(BY SRI. KIRAN V RON., AAG A/W
SRI. MAHANTESH SHETTAR., AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR AND OTHER WRIT OR DIRECTION AND QUASH THE
IMPUGNED NOTICE DATED 26.06.2024 BEARING NO.
SA:NO./VA.AA.AA/DE.VA/AA.AA.MO/133/2024-25 ISSUED BY
RESPONDENT NO.2 IN SO FAR AS PETITIONER THEREIN PRODUCED
AS ANNEXURE-A TO THIS WRIT PETITION AS VOID, INOPERATIVE
AND BAD IN LAW AND ETC.
IN W.P.NO.392 OF 2021
BETWEEN
1. M/S PRAKRUTI CENTURY PROPERTIES
HAVING REGISTERED OFFICE
AT NO.10/1 LAKSHMINARAYANA COMPLEX
PALACE ROAD, BANGALORE
REPRESENTED BY ITS AUTHORIZED SIGNATORY
SRI CHETHAN KUMAR S.
2. SRI M A MOHAMMED SANAULLA
S/O M ABDUL SAB
AGED ABOUT MAJOR
R/A CHIKKASANNE VILLAGE
KASABA HOBLI
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT.
3. SRI M A MOHAMMED AMANULLA
S/O M ABDULLA
AGED ABOUT MAJOR
R/A CHIKKASANNE VILLAGE
KASABA HOBLI DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT.
4. SRI MOHAMMED ATHAULLA
S/O SRI ABDULLA
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AGED ABOUT MAJOR
R/A CHIKKASANNE VILLAGE
KASABA HOBLI DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT.
5. SRI M A MOHAMMED KHALIULLA
S/O SRI ABDULLA
AGED ABOUT MAJOR
R/A CHIKKASANNE VILLAGE
KASABA HOBLI DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT.
...PETITIONERS
(BY SRI. CHANDAN.K., ADVOCATE)
AND
1. STATE OF KARNATAKA
REP BY ITS ADDITIONAL CHIEF,
SECRETARY, FOREST DEPARTMENT,
KARNATAKA GOVERNMENT SECRETARIAT,
ROOM NO. 447, 4TH FLOOR, GATE NO.2,
M.S BUILDING, BANGALORE-560001.
2. DEPUTY FOREST CONSERVATION OFFICER,
BANGALORE RURAL DIVISION
DEVANAHALLI, SAVAKANAHALLI GATE,
DEVAHAHALLI TALUK,
BANGALORE RURAL DISTRICT-563102.
.... RESPONDENTS
(BY SRI. KIRAN V RON., AAG A/W
SRI. MAHANTESH SHETTAR., AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR AND OTHER WRIT OR DIRECTION AND QUASH THE
IMPUGNED NOTICES ALL DATED 13.11.2020 PRODUCED AS
ANNEXURE-A TO A6 AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 24.04.2025, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
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CAV ORDER
1. The petitioners in WP No.392 of 2021 are before this
court seeking the following reliefs:
a. Issue a writ of certiorari or and other writ or direction
and quash impugned notices dated 13.11.2020
bearing nos.
1) A4/U.A.SO/BE.GRA.Vi/DE.VA/F.O.C-07/06-07,
2) A4/U.A.SO/BE.GRA.Vi/DE.VA/F.O.C-08/06-07,
3) A4/U.A.SO/BE.GRA.Vi/DE.VA/F.O.C-09/06-07,
4) A4/U.A.SO/BE.GRA.Vi/DE.VA/F.O.C-13/06-07,
5) A4/U.A.SO/BE.GRA.Vi/DE.VA/F.O.C-14/06-07,
6)A4/U.A.SO/BE.GRA.Vi/DE.VA/F.O.C-14/06-07
issued by R2 produced as Annexure-A1 to A6 to this
writ petition as void, inoperative and bad in law.
b. Grant such other reliefs that this Hon'ble Court may
deem fit to grant in the circumstances of the case, in
the interest of justice and equity.
2. The petitioners in WP No.19674 of 2024 are before
this court seeking for the following reliefs:
a. Issue a writ of certiorari or and other writ or
direction and quash impugned notice dated
26.06.2024 bearing no.
Sa:No.Va.AA.AA/DE/VA/AA.AA.MO/133/2024-25
issued by respondent No.2 in so far as petitioner
therein produced as Annexure-A to this writ
petition as void, inoperative and bad in law.
b. Grant such other reliefs that this Hon'ble Court may
deem fit to grant in the circumstances of the case,
in the interest of justice and equity.
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Facts in WP No.392 of 2021:
3. The Petitioners No.2 to 5 claim to be bona fide
owners of the land bearing survey Nos. 68, 118, (old
No.69/3, 69/2, portion of 69/3, 69/4 and 69/5),
situated at Chikkasane village, Kasaba Hobli,
Devanahalli post.
4. Petitioner No.1 is stated to be a registered
partnership firm who has entered into a Joint
Development Agreement ['JDA'] dated 30.07.2007,
17.01.2008 and 02.01.2009 with Petitioners No. 2 to
5, who, as aforesaid, are stated to be the owners of
land bearing survey No. 68/1 measuring 11 acres 18
guntas, 69/2 measuring 8 acres 35 guntas, 69/3
measuring 10 acres 11 guntas,69/4 measuring 10
acres 10 guntas and 69/5 measuring 10 acres 10
guntas, totally measuring 51 acres 4 guntas situated
at Chikkasane village, Kasaba Hobli, Devanahalli
taluk, Bangalore Rural district.
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5. Petitioner No.1 had applied for sanction of a
residential layout called 'Century Sports Village' on
15.09.2010, which came to be approved by the
Bangalore International Airport Area Planning
Authority ['BIAPPA'] vide order dated 06.02.2014.
The Layout being sanctioned, 40 per cent of the sites
were released by an order dated 02.12.2014, in
pursuance of which it is claimed that sales have been
made to various persons.
6. It is claimed that the lands in the year 1924 were
treated as a military camping ground and thereafter
the government, considering the said land to be fit
for cultivation, granted a portion of the said land for
defence personnel in the year 1932.
7. The defence personnel who were granted the subject
lands did not make payment of taxes for the years
1934-1935 and 1935-1936, and as such, the lands
were auctioned to one Sri.Subbaraya Mudaliar to
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recover the same. The said Subbaraya Mudaliar,
having purchased the said lands in a public auction, a
sale certificate came to be issued on 08.03.1937
bearing certificate No. 1040/36-37. He in turn, sold
those lands to Sri.A.S.Ashwatnaryaana,
Sri.A.S.Umashankar and Sri.A.S.Raghuveer under a
sale deed dated 27.03.1952. The said
Ashwatnarayana, A.S.Umashankar and
A.S.Raghuveer sold an extent of 10 acres of that
land in favour of Smt.A.S.Vanajamma, wife of A.S.
Ramaswamy, under a registered sale deed dated
19.01.1963. Smt.Vanajamma thereafter sold the
aforesaid 10 acres to Sri.I.H.Chettira, I.M.Kariappa,
Sri. I.M.Muthanna, and Sri.I.M.Ganapati, vide sale
deed dated is 03.11.1965.
8. Subsequently, the land measuring 33 acres 24
guntas in survey No. 69, was also conveyed by
Sri.A.S.Ashwatnarayana, Sri.A.S.Umashankar and
Sri.A.S.Raghuveer to the aforesaid Sri.I.M.Kariappa,
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I.M.Muthanna, and I.M.Ganapati under a registered
sale deed dated 03.11.1965. The said,
Sri.I.M.Kariappa, I.M.Muthanna, and I.M.Ganapati
further sold an extent of 10 acres of that land to
Sri.Mohammad Khaliullah-Petitioner No. 5 herein, an
extent of 8 acres 35 guntas to Mohammad
Sanaullah-Petitioner No.2 herein, an extent of 10
acres to Mohammad Amanullah-Petitioner No.3
herein and an extent of 10 acres to Mohammad
Attaullah-Petitioner No.4 herein all under different
sale deeds, all dated 19.08.1977. Thereafter,
Petitioner Nos. 2 to 5, are stated to be in possession
of these conveyed lands.
9. Contending that there is interference with his
possession by the Forest Department, Petitioner No.
2-Mohammad Sanaullah, had filed a suit in O.S. No.
600/1981 seeking a permanent injunction against
the Forest Department, restraining the Forest
Department from interfering with the peaceful
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possession of Petitioner No.2 in Survey No. 69/2. The
said suit came to be dismissed on 13.12.1985 with
costs.
10. The Munsiff Court, Devanahalli, held that Mohammad
Sanaullah was not in lawful possession of the suit
property, he had not proven any interference by the
forest department and that he was not entitled to
any injunction. Challenging the same, the Petitioner
No. 2-Mohammad Sanaulla filed a Regular Appeal in
R.A. No. 10/1986 before the Principal Civil Judge.
The said Regular Appeal was allowed, and a
permanent injunction was granted in favour of
Petitioner No.2-Mohammad Sanaulla, on 24.07.1989,
restraining the Forest Department from interfering
with his possession. The Principal Civil Judge,
Bangalore District, in the said R.A. No. 10/1986
came to the conclusion that Mohammad Sanaulla
was in lawful possession of the suit property and that
he had proven interference by the Forest
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Department, and the finding of the Munsiff Court in
that regard was not proper and correct.
11. The Forest Department challenged the said judgment
in R.A. No. 10/1986, by filing a Regular Second
Appeal in RSA. No. 673/1996. However, the same
came to be withdrawn, by the Forest Department on
11.03.1997 on the ground that the Forest
Department had filed a suit in O.S. No. 34/1997, on
the file of the Civil Judge, Bangalore Rural Court for
declaration that the lands in question to be declared
as forest land and in view of the institution of the
said suit, the Forest Department wanted to withdraw
the appeal. The Forest department having filed OS
No.34/1997 on 18.01.1997, the same came to be
renumbered as OS No.1424/2006 on its transfer to
the Court of the Principal Civil Judge, Devanahalli.
12. In the said suit the Forest Department had sought for
a declaration that an area to the extent of 8 acres 35
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guntas of the suit schedule property was forest
property, and the said suit came to be dismissed on
8.03.2012, on the ground that there was no
documents/evidence produced to establish that the
land belongs to the forest department. The Principal
Civil Judge took into account the fact that the auction
was conducted by the government itself and, as
such, the forest department could not claim any right
of ownership therein. Following the dismissal of OS
No.1424/2006, the Forest Department challenged
the said order in RFA No.1287/2012, wherein the
operation of the order in OS No. 1424/2006 was
stayed in the year 2019. However, while granting the
said order, this Court has categorically observed that
the Forest Department shall not dispossess the
Petitioners or anyone claiming ownership under the
petition.
13. The Respondents had initiated criminal proceedings
against Petitioner Nos. 2 to 6 in the year 2006 in
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F.O.C.No. 7/2006-07, F.O.C. 8/2006-07, F.O.C.
9/2006-07, F.O.C. 13/2006-07 and F.O.C. 14/2006-
07 before the Civil Judge (Junior Division) and JMFC
Devanahalli. These proceedings were challenged by
Petitioner Nos. 1 to 6 in Criminal Petition No. 1852,
1853, 1854, 1856 and 1857 of 2012 respectively and
this Court vide its order dated 13.06.2012, quashed
all the said proceedings, reserving liberty to the
Forest Department to conduct a survey and proceed
with the matter in accordance with law if there is any
encroachment on the forest land. The Forest
Department wrote a letter to the Tahsildar,
Bhuvanahalli, on 09.01.2015 for a joint survey to
ascertain encroachment. The surveyor, having issued
a notice on 31.01.2015, a joint survey was
conducted and a report submitted by the Tahsildar,
Bhuvanahalli, stating that only survey No.30 is a
forest land on which there is some encroachment,
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further that survey Nos.69/2, 69/3, 69/4 and 69/5,
68/1 and 68/2 were not forest land.
14. While things stood thus, the Forest Department once
again issued notices on 31.11.2020 for
encroachment of the forest land alleging violation of
Rule 41(2), Section 2(ii) of the Forest Conservation
Act, 1980 [hereinafter referred to as 'FCA 1980]
and Section 24-G, 24-GG, 24-H of the Karnataka
Forest Act, 1963 [hereinafter referred to as 'KFA
1963']. Petitioners issued replies to the said notices.
It is challenging the said notices that the petitioners
are before this Court.
Facts in WP No.19674/2024:
15. The sole petitioner, Mohammed Shoaib contends that
the land in survey no. 68, situated at Chikkasane
Village, Devanahalli Taluk, measuring 16 acres 18
guntas, belonged to one Sri.B.Muniyappa
Devanahalli, having acquired the same under
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Darkast vide AD 63-1944-45, dated 29.08.1945. The
said B.Muniyappa had mortgaged the property to
Land Mortgage Co-operative Bank Society,
Devanahalli, for a sum of Rs.1,500/-. Since the
mortgage was not discharged, the Assistant Registrar
of Co-operative Societies passed a decree against the
said B.Muniyappa Devanahalli in Order No.7/1953-
54, dated 13.08.1954.
16. Thereafter, an auction was conducted in Execution
Petition No.107/1961-62, where Smt.Sanjeeda
Begum was confirmed to be the successful bidder,
and a sale certificate came to be issued by the
Assistant Registrar of Cooperative Societies on
29.04.1963, which has been registered with the
Office of the Sub-Registrar. Thereafter,
Smt.Sanjeeda Begum, under a settlement deed
dated 18.11.1974, conveyed the said property to her
son, Mohammad Iqbal, who, in turn, conveyed the
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said property in favour of the Petitioner, being his
son, under a settlement deed dated 30.03.2002.
17. Out of the said 16 acres 18 guntas, he sold 5 acres
to one Shadab Vahab, s/o Abdul Wahab, under a
registered sale deed dated 04.08.2025 and retained
11 acres 18 guntas, as regards which he entered into
a Joint Development Agreement [JDA] with M/s.
Prakruti Century Properties, which is Petitioner No.1
in WP No. 392 of 2021.
18. The Petitioners obtained conversion of the property
from agricultural to residential purposes in terms of
the order dated 30.10.2006 of the Deputy
Commissioner, which property was made part of the
application dated 15.09.2010 for a residential layout
submitted by Prakruti Century Properties, which was
so sanctioned on 02.12.2014. 40% of the sites were
released on 02.12.2014, 30% on 03.05.2017, and
the remaining 30% on 12.09.2019, in terms of which
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sales have been carried out in favour of various
purchasers. References were made to these lands in
a suit in OS No.1424 of 2006, the Regular Appeal
filed thereafter, as also the Regular First Appeal,
which is pending consideration.
19. Reference is made to the judgment dated 8.03.2012
dismissing OS No. 1424 of 2006, resulting in the
Forest Department filing a Regular First Appeal in
RFA No. 1287 of 2012, which also came to be
dismissed on 16.04.2021, which is challenged by the
Forest Department in an appeal before the Hon'ble
Supreme Court in Civil Appeal No.5801 of 2022. The
Hon'ble Apex Court allowed the appeal vide order
dated 20.09.2022 and remanded the matter to the
Trial Court. The Trial Court, after considering the
evidence on record, once again by its order dated
15.12.2023, dismissed the suit of the Forest
Department. Aggrieved by which the Forest
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Department has filed a Regular First Appeal in RFA
No. 160 of 2024, which is pending.
20. Reference is also made to the various proceedings
initiated in FOC 7, 8, 9, 13 and 14 of 2006-07,
challenge made in Criminal Petition No. 1852, 1853,
1854, 1856 and 1857 of 2012, quashing of the FOC
proceedings, liberty being reserved to conduct a
survey, which survey was conducted by the
Tahsildar, Bhuvanahalli, indicating that there is no
forest land situated in survey No. 69, hence there is
no encroachment. It is in that stage that the Forest
Department issued one more notice on 09.03.2021.
The Petitioner is before this Court challenging the
said notice stating that 80% of the sites have already
been sold and the remaining sites are in the process
of being sold, seeking for the aforesaid reliefs.
21. Sri. K. Chandan, learned counsel appearing for the
Petitioners, would submit that,
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21.1. The proceedings which have been initiated now
in both the writ petitions under the Forest Act
are not maintainable. There is a large delay in
the initiation of the proceedings. His submission
is that the land in question has never been
shown to be forest land in any of the revenue
records, at least from the time of auction in the
year 1936 with respect to survey No. 69 and
from the year 1945 with respect to survey No.
68 From the year 1936 and or 1945, no action
has been initiated by the Forest Department
under the Forest Act.
21.2. The proceedings, which were initiated in 2006-
07, have been quashed. There is a delay of
nearly 60 years. Even taking into account the
second auction in the year 1945, since the
earlier FOC cases had been initiated in the year
2006-07. Even those proceedings initiated in
the year 2006-07 have been quashed by this
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Court in various criminal petitions in 1852 to
1857 of 2012, vide order dated 13.06.2012.
Liberty having been reserved to conduct a
survey, the said liberty has also been exercised
by the Forest Department. The orders passed in
the criminal petitions have attained finality with
the quashing of the FOC proceedings.
21.3. A survey having been conducted on
12.06.2015, the Tahsildar, Bhuvanahalli, has
categorically indicated that there is no
encroachment of any forest land. The orders
passed in the criminal petitions, not having
been challenged, liberty having been exercised,
a report having been submitted by the
Tahsildar that there is no encroachment, the
question of the Forest Department once again
contending that there is an encroachment is
completely impermissible and is not
sustainable.
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21.4. A joint survey was conducted in the year 2015,
and a unilateral survey was carried out in the
year 2017, on the basis of which the present
notices have been issued in the year 2021,
which is not permissible. The survey report of
the year 2015 has not been challenged. The
survey carried out in the year 2017 is not a
joint survey of which the Petitioners are part of,
and as such, the present notices could not have
been issued.
21.5. His submission is that it is not just a show-
cause notice, which is challenged in these
proceedings. It is the jurisdiction of the forest
department to issue a show cause notice after
the same was earlier quashed in the year 2012,
disentitling the Respondents to issue a fresh
show cause notice and or initiate fresh FOC
proceedings, which is under challenge.
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21.6. His further submission is that neither the
Mysore Forest Regulation, 1900 [hereinafter
referred to as 'MFR 1900'] nor the KFA 1963,
provides for any limitation period in order to
recover any land which has been used for non-
forest purposes. However, any such recovery
would have to be made within a reasonable
period of time. Merely not providing for a period
of limitation would not empower the Forest
Department to take action at any time they
choose to at their whims and fancies. The
property, having been put to use by private
persons in the year 1936 in respect of survey
No. 69 and in the year 1945 in respect of
survey No. 68, it was required that action be
taken within a reasonable period of time. The
action taken in the year 2006-07, even if
eschewed, at the most, action could be said to
have been taken in the year 2021, which is
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more than 85 years from 1936 and 75 years
from the year 1945, which cannot be said to be
a reasonable period of time, even if it were to
be considered that the subject lands were
forest land, which they are not.
21.7. He relies upon the decisions of the Hon'ble Apex
Court in Sita Sahu and Ors. vs State of
Jharkhand and Others.1, more particularly
para nos. 10 and 11 thereof, which are
reproduced hereunder for easy reference:
10. Apart from the reasoning given by the High
Court, it appears to us that the judgment of this
Court in Ibrahimpatnam (supra) is decisive on the
contention of limitation urged before us. Under
somewhat similar circumstances suo-motu power was
given to the Collector under section 50B (iv) of the
Andhra Pradesh (Telangana Area) Tenancy and
Agricultural Lands Act, 1950 to call for and examine
the record relating to any certificate issued or
proceedings taken by the Tahsildar under this section
for the purpose of satisfying himself as to the legality
or propriety of such certificate or as to the regularity
of such proceedings and pass such order in relation
thereto as he may think fit. In this judgment, to
which one of us (Shivraj V. Patil, J.) was a party, the
Court observed (para 9):
1
Manu SC 0744/2004 | 2004 INSC 508
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"Even before the Division Bench of the High
Court in the writ appeals, the appellants did not
contend that the suo motu power could be
exercised even after a long delay of 13-15 years
because of the fraudulent acts of the non-official
respondents. The focus of attention before the
Division Bench was only on the language of sub-
section (4) of Section 50-B of the Act as to
whether the suo motu power could be exercised
at any time strictly sticking to the language of
that sub-section or it could be exercised within
reasonable time. In the absence of necessary
and sufficient particulars pleaded as regards
fraud and the date or period of discovery of
fraud and more so when the contention that the
suo motu power could be exercised within a
reasonable period from the date of discovery of
fraud was not urged, the learned Single Judge
as well as the Division Bench of the High Court
were right in not examining the question of
fraud alleged to have been committed by the
non-official respondents. Use of the words "at
any time" in Sub-section (4) of Section 50-B of
the Act only indicates that no specific period of
limitation is prescribed within which the suo
motu power could be exercised reckoning or
starting from a particular date advisedly and
contextually. Exercise of suo motu power
depended on facts and circumstances of each
case. In cases of fraud, this power could be
exercised within a reasonable time from the
date of detection or discovery of fraud. While
exercising such power, several factors need to
be kept in mind such as effect on the rights of
the third parties over the immovable property
due to passage of considerable time, change of
hands by subsequent bona fide transfers, the
orders attaining finality under the provisions of
other Acts (such as the Land Ceiling Act).
Hence, it appears that without stating from what
date the period of limitation starts and within
what period the suo motu power is to be
exercised, in Sub-section (4) of Section 50-B of
the Act, the words "at any time" are used to
that the suo motu power could be exercised
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within reasonable period from the date of
discovery of fraud depending on facts and
circumstances of each case in the context of the
statute and nature of rights of the parties. Use
of the words "at any time" in Sub-section (4) of
Section 50-B of the Act cannot be rigidly read
letter by letter. It must be read and construed
contextually and reasonably. If one has to
simply proceed on the basis of the dictionary
meaning of the words "at any time", the suo
motu power under Sub-section (4) of Section
50-B of the Act could be exercised even after
decades and then it would lead to anomalous
position leading to uncertainly and complications
seriously affecting the rights of the parties, that
too, over immovable properties. Orders
attaining finality and certainty of the rights of
the parties accrued in the light of the orders
passed must have sanctity. Exercise of suo
motu power "at any time" only means that no
specific period such as days, months or years
are not prescribed reckoning from a particular
date. But that does not mean that "at any time"
should be unguided and arbitrary. In this view,
"at any time" must be understood as within a
reasonable time depending on the facts and
circumstances of each case in the absence of
prescribed period of limitation."
11. We are, therefore, of the view that the use of the
words "at any time" in section 71A is evidence of the
legislative intent to give sufficient flexibility to the
Deputy Commissioner to implement the socio-
economic policy of the Act viz. to prevent inroads
upon the rights of the ignorant, illiterate and
backward citizens. Thus, where the Deputy
Commissioner chooses to exercise his power under
Section 71A it would be futile to contend that the
period of limitation under Limitation Act has expired.
The period of limitation under the Limitation Act is
intended to bar suits brought in civil courts where the
party himself chooses to exercise his right of seeking
restoration of immovable property. But, where, for
socio-economic reasons, the party may not even be
aware of his own rights, the legislature has stepped
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in by making an officer of the State responsible for
doing social justice by clothing him with sufficient
power. However, even such power cannot be
exercised after an unreasonably long time during
which third party interests might have come into
effect. Thus, the test is not whether the period of
limitation prescribed in the Act of 1963 had expired,
but whether the power under Section 71A was sought
to be exercised after unreasonable delay.
21.8. By referring to Sita Sahu's case, he submits
that the period of limitation under Limitation
Act is intended to bar suits brought in Civil
Courts, even where socio-economic reasons
exist, where an officer of the State has been
made responsible for doing social justice, even
then such power cannot be exercised after an
unreasonably long time during which third party
interest might have come into being. Thus,
even if no limitation period is prescribed under
the Andhra Pradesh's local laws (Telangana
area), limitation period is prescribed under the
Limitation Act, 1963 and the power under
Section 71A of the Chota Nagpur Tenancy Act,
1908 was required to be exercised without any
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unreasonable delay. He submits that the
exercise of powers under Section 71A is to
restore possession to members of the
scheduled tribes whose lands were unlawfully
transferred by the Deputy Commissioner. That
ruling, he submits, would be equally applicable
as regards a claim that the land in question is a
forest land.
21.9. He relies upon the decision in Chhedi Lal
Yadav and Ors. vs Hari Kishore Yadav and
Ors.2 of the Hon'ble Apex Court, more
particularly para no.9 thereof which is
reproduced hereunder for easy reference:
9. The learned counsel appearing for the appellants
vehemently submitted that the delay must be
overlooked because the Act is a beneficial piece of
legislation intended to bring relief to farmers who had
been dispossessed during the proscribed period. The
reliance was placed on a judgment of this Court in New
India Assurance Co. Ltd. v. C. Padma [New India
Assurance Co. Ltd. v. C. Padma, (2003) 7 SCC 713 :
2003 SCC (Cri) 1709] , where this Court held that in a
motor accident which took place on 18-12-1989, a claim
2
(2018) 12 SCC 527
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petition barred by time but filed on 2-11-1995, after
limitation itself was removed from the statute was
maintainable. This Court held that there could be no
resort to Article 137 of the Limitation Act, 1963 even
though no period of limitation was prescribed.
Accordingly, the Court held that the claim petition could
not be rejected at the threshold on the ground of
limitation, after the deletion of sub-section (3) of
Section 166 of the Motor Vehicles Act, 1988 which had
provided a period of six months. This view was taken
having regard to the purpose of the statute. We,
however, find that the judgment relied on has no
application to the present case. It is a settled law where
the statute does not provide for a period of limitation,
the provisions of the statute must be invoked within a
reasonable time.
21.10. He relies on the decision in Nekkanti Rama
Lakshmi vs State of Karnataka and Anr.3,
which is reproduced hereunder for easy
reference:
1. This appeal is preferred against the judgment
[Nekkanti Ramalakshmi v. State of Karnataka, 2006
SCC OnLine Kar 881] of the High Court of Karnataka
at Bangalore. A learned Single Judge of the High
Court upheld [Nekkanti Rama Lakshmi v. State of
Karnataka, 2006 SCC OnLine Kar 883] the order of
the appellate authority under the Karnataka
Scheduled Castes and Scheduled Tribes (Prohibition of
Transfer of Certain Lands) Act, 1978, which came into
force in 1979 (for short "the Act"). The appellate
authority had by its order set aside the order of the
Assistant Commissioner, Davanagere. The appellate
3
(2020) 14 SCC 232
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authority had annulled the transfer of land measuring
1 acre and 2 guntas, which was sold out of a total of 2
acres and 2 guntas, and further directed the Assistant
Commissioner, Davanagere to restore the disputed
land to the possession of the applicant.
2. The land was originally granted to one Kariyappa
on the basis of a grant which had not been produced
on record. The grant was on 30-6-1965. Kriyappa sold
the land to one Mekha Narasimha Murthy on 15-12-
1977. The appellant, Smt Nekkanti Rama Lakshmi
purchased the land on 27-6-1984 from Mekha
Narasimha Murthy.
3. With effect from 1-1-1979, the Act came into force.
That Act vide Section 4 [ "4. Prohibition of transfer
of granted lands.--(1) Notwithstanding anything in
any law, agreement, contract or instrument, any
transfer of granted land made either before or after
the commencement of this Act, in contravention of
the terms of thegrant of such land or the law
providing for such grant, or sub-section (2) shall be
null and void and no right, title or interest in such
land shall be conveyed or be deemed ever to have
conveyed by such transfer.(2) No person shall, after
the commencement of this Act, transfer or acquire by
transfer any granted land without the previous
permission of the Government.(3) The provisions of
sub-sections (1) and (2) shall apply also to the sale of
any land in execution of a decree or order of a civil
court or of any award or order of any other
authority."] annulled the transfer of any granted land
in contravention of the terms of grant of such land.
4. Section 5 [ "5. Resumption and restitution of
granted lands.--(1) Where, on application by any
interested person or on information given in writing
by any person or suo motu, and after such enquiry as
he deems necessary, the Assistant Commissioner is
satisfied that the transfer of any granted land is null
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and void under sub-section (1) of Section 4, he may--
(a) by order take possession of such land after
evicting all persons in possession thereof in such
manner as may be prescribed:Provided that no such
order shall be made except after giving the person
affected a reasonable opportunity of being heard;(b)
restore such land to the original grantee or his legal
heir. Where it is not reasonably practicable to restore
the land to such grantee or legal heir, such land shall
be deemed to have vested in the Government free
form all encumbrances. The Government may grant
such land to a person belonging to any of the
Scheduled Castes or Scheduled Tribes in accordance
with the rules relating to grant of land.(1-A) After an
enquiry referred to in sub-section (1) the Assistant
Commissioner may, if he is satisfied that transfer of
any granted land is not null and void pass an order
accordingly.(2) Subject to the orders of the Deputy
Commissioner under Section 5-A, any order passed
under sub-section (1) and (1-A) shall be final and
shall not be questioned in any court of law and no
injunction shall be granted by any court in respect of
any proceeding taken or about to be taken by the
Assistant Commissioner in pursuance of any power
conferred by or under this Act.(3) For the purposes of
this section, where any granted land is in the
possession of a person, other than the original
grantee or his legal heir, it shall be presumed until the
contrary is proved, that such person has acquired the
land by a transfer which is null and void under
provisions of sub-section (1) of Section 4."] of the Act
provided for resumption and restitution of granted
lands. It provided for an application to be made by an
interested person to the Assistant Commissioner for
restoration of such land. It also provided for exercise
of suo motu power.
5. Rajappa, son of Kriyappa (R-2 herein) made an
application for restoration of such land to himself by
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an application dated 24-3-2004 i.e. approximately
after 25 years of when the Act came into force.
6. As stated earlier, the Assistant Commissioner,
Davanagere rejected that application. The appellate
authority allowed the application and the High Court
upheld the order of the appellate authority. This
appeal is preferred by the second purchaser of the
said land.
7. Shri R.S. Hedge appearing for the appellant urged
several grounds. It is contended by Shri Hegde that
proceedings are void for non-joinder of the first
purchaser of the land. It is further contended that the
non-alienation period i.e. period for which Kriyappa
could not have transferred the land was not 15 years
but was 10 years under the Rules of the land and,
therefore, transfer was legal having been made after
10 years. However, the applicant had not produced
the original grant, and, therefore, it was not possible
for the purpose to come to a conclusion that the
transfer was in breach of the non-alienation period.
We, however, find that one of the points raised on
behalf of the appellant deserves acceptance. That
point is that the application for restoration of the land
was made by the heir of Kriyappa after unreasonably
long period i.e. 25 years from when the Act came into
force. Section 4 of the Act itself has a ubiquitous
effect in it, annulling the transfer of granted land
"made either before or after the commencement of
the Act" as null and void. The Act does not specify
how much before the commencement of the Act. Thus
on a plain and critical reading of the Act, it seems that
it covers proceedings made in time before the Act was
enacted. However, we are not called upon to deal with
the reasonableness of this provision and we do not
propose to say anything on this. The validity of the
Act has been upheld by a judgment of this Court in
Manchegowda v. State of Karnataka [Manchegowda v.
State of Karnataka, (1984) 3 SCC 301].
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8. However, the question that arises is with regard to
terms of Section 5 of the Act which enables any
interested person to make an application for having
the transfer annulled as void under Section 4 of the
Act. This section does not prescribe any period within
which such an application can be made. Neither does
it prescribe the period within which suo motu action
may be taken. This Court in Chhedi Lal Yadav v. Hari
Kishore Yadav [Chhedi Lal Yadav v. Hari Kishore
Yadav, (2018) 12 SCC 527 : (2018) 5 SCC (Civ) 427]
and also in Ningappa v. Commr. [Ningappa v.
Commr., (2020) 14 SCC 236] reiterated a settled
position in law that whether statute provided for a
period of limitation, provisions of the statute must be
invoked within a reasonable time. It is held that action
whether on an application of the parties, or suo motu,
must be taken within a reasonable time. That action
arose under the provisions of a similar Act which
provided for restoration of certain lands to farmers
which were sold for arrears of rent or from which they
were ejected for arrears of land from 1-1-1939 to 31-
12-1950. This relief was granted to the farmers due to
flood in Kosi River which make agricultural operations
impossible. An application for restoration was made
after 24 years and was allowed. It is in that
background that this Court upheld that it was
unreasonable to do so. We have no hesitation in
upholding that the present application for restoration
of land made by respondent Rajappa was made after
an unreasonably long period and was liable to be
dismissed on that ground. Accordingly, the judgments
of the Karnataka High Court, namely, R. Rudrappa v.
Commr. [R. Rudrappa v. Commr., 1998 SCC OnLine
Kar 671 : (2000) 1 Kant LJ 523] , Maddurappa v.
State of Karnataka [Maddurappa v. State of
Karnataka, (2006) 4 Kant LJ 303] and G.
Maregoudav. Commr. [G. Maregouda v. Commr.,
(2000) 2 Kant LJ SN 4B] holding that there is no
limitation provided by Section 5 of the Act and,
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therefore, an application can be made at any time,
are overruled. Order accordingly.
9. The appeal is allowed accordingly.
21.11. By relying on Chedi Lal Yadav, which has also
been referred to in Nekkanti Ramalakshmi's
case, his submission is that any powers that are
to be exercised by an authority are to be
exercised within a reasonable period of time. In
the present case, 85 and 75 years are not a
reasonable period of time. On that ground
itself, he submits that the Petitioners cannot be
subjected to unnecessary proceedings initiated
by the Forest department and the proceedings
are required to be quashed.
21.12. The earlier proceedings, which were initiated for
similar alleged encroachment of forest land in
FOC No. 7, 8, 9, 13 and 14, of 2006-07, were
quashed in Criminal Petitions No.1852 to 1857
of 2012, on 13.06.2012. Once a proceeding
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initiated under the Forest Act has been
quashed, the question of initiation of fresh
proceedings, as done now for allegedly the very
same offence and or issue, is not sustainable in
law. There are no circumstances which can be
said to exist which can be said to be changed
circumstances requiring the initiation of those
proceedings.
21.13. In pursuance of the orders passed in Criminal
Petition No. 1852 of 2012 and other matters,
the Tahsildar, Bhuvanahalli, has conducted a
joint survey in the presence of the Petitioners
and the representatives of the Forest
department and has categorically come to a
conclusion that there is no encroachment of any
forest land and that in survey No. 68 and 69
there is no forest land. The claim of the
Petitioners being only as regards survey No. 68
and 69, the question of there being any
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encroachment of forest land when such survey
numbers are not designated as forest land,
would not arise. These are matters which this
Court can take into account even in a writ
petition without relegating the Petitioners to
any other remedy.
21.14. The show-cause notice, which has been issued,
is without jurisdiction, causes injustice to the
Petitioners, and therefore, this Court ought to
intercede in this matter.
21.15. As regards the probable contention of the forest
department, which was taken in the suit filed as
also the appeals which were filed thereafter, he
submits that once a grant of the land has been
made, the said land does not continue to be
forest land. Even if the notification relied upon
by the Forest department were to be admitted
to be true, and the land were to be considered
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to be forest land belonging to the Forest
Department, these lands in Sy No. 69 were as
far back as the year 1932, granted to a defence
personnel, namely Shri. Manikaraj who had
defaulted in making payment of taxes, resulting
in the property being auctioned in the year
1936, in favour of Sri.Subbaraya Mudaliyar
whose details are found mentioned in the
Kethwar register. The grant having been made
to a defence personnel Shri. Manikaraj by the
State, the auction having been carried out by
the department of the State, it cannot now be
contended that the land is forest land as
alleged or otherwise.
21.16. He refers to Section 20 of the MFR 1900 which
is reproduced hereunder for easy reference:
20. No right of any description shall be acquired in
or over a State Forest, except by succession or
under grant or contract in writing made by or on
behalf of the Government or of some person in
whom such right or the power to create such right
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was vested when the notification under section 17
was published.
21.17. Though no right of any description shall be
acquired in or over a State forest, the same is
subject to exceptions, namely by succession or
under a grant or contract in writing made by or
on behalf of the government. The grant made
to the defence personnel Shri. Manikaraj is an
exception to Section 20 of the MFR 1900, which
has been made in writing for and on behalf of
the government, which are found mentioned in
the Kethwa Register.
21.18. There being a default on part of the grantee in
making payment of due taxes, an auction has
been conducted by the government, which
would not have been conducted if the lands
were forest land. By conduct of such an
auction, the grant made in favour of defence
personnel Shri. Manikaraj is confirmed, bringing
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it into the exceptions to Section 20 of the
Regulation of 1900. He refers to the
explanation to Section 20 and elaborates that
Section 20 provides an exception to Section 17
of MFR 1900. Section 17 is reproduced
hereunder for easy reference:
17. When the following events have occurred,
viz.-
(a) the period fixed under section 5 for preferring
claims has elapsed, and all claims, (if any) made
within such period have been disposed of by the
Forest Settlement Officer; and
(b) if such claims lave been made, the period fixed
by section 15 for appealing from the orders passed
on such claims has elapsed, and all appeals, (if any)
presented within such period have been disposed of
by the appellate authority; and
(c) all proceedings prescribed by sections 10 and 18
have been taken and all lands or buildings, (if any) to
be included in she proposed State Forest, which the
Forest Settlement Officer has under section 10
elected to acquire under the Mysore Land Acquisition
Act, 184, have become vested in Government under
section 16 of that Act;
the Government may publish a notification in the
official Gazette specifying the limits of
the forest which it is intended to constitute a State
Forest and declaring the same to be a State Forest
from a date fixed by such notification, subject to the
exercise of rights (if any) specified at foot of the said
notification.
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From the date so fixed such forest shall be deemed
to be a 'State Forest'.
21.19. Thus, taking into consideration Section 20 and
the explanation thereto, the same acts as an
exception to Section 17, the said lands, having
been granted by way of a writing made by the
government, are binding on the Forest
Department as well.
21.20. Insofar as land in survey No.69 is concerned,
the same having been granted to the defence
personnel, Shri. Manikaraj by the government
in the year 1932, the auction having been
conducted on 30.09.1996, with Subbaraya
Mudaliyar being declared as a successful bidder,
a sale certificate was issued and registered on
19.11.1936 as Document No.1040 in Book 1,
Volume 380, as per Rule 99 and Section 187 of
the Mysore Land Revenue Code and Rules,
1888. The said Rule 99 of the Mysore Land
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Revenue Rules, 1888, is reproduced hereunder
for easy reference:
99. (a) Every sale, shall, as a rule, be held on the
day named in the proclamation, and, if necessary,
continued from day to day (close holidays
excepted), until all the properties specified in the
proclamation shall have been sold. The Officer
conducting the sale, may, however in his discretion,
adjourn any sale for a period not exceeding three
days, recording his reasons for such adjournment:
provided that, when the sale is conducted by the
Revenue Inspector in or within the precincts of the
Amildar's or Deputy Amildar's Office, no such
adjournment shall be made without the leave of the
Amildar or Deputy Amildar if he is at headquarters.
[(b) Where any land or other property is sold by
public auction an upset price shall, if the Deputy
Commissioner thinks fit, be placed thereon:
Provided that where in the opinion of the Deputy
Commissioner difficulty is likely to be experienced
in effecting speedy recovery of the arrears or
bidders are likely to be deterred from offering bids,
no such upset price shall be placed.) (Substituted
by Notification No. RD 221PES 358, dated 3-9-
1958)
[(c) Where in the opinion of the Deputy
Commissioner, difficulty is likely to be experienced
in effecting speedy recovery of the arrears or
bidders are likely to be deterred from offering bids,
it shall be lawful for the Deputy Commissioner or
his nominee to bid at the auction and purchase the
land or other property for a bid of rupee one:
Provided that in the case of land forfeited under
Section 159, the Deputy Commissioner may direct
that the land be either resumed and dealt with as
an unoccupied land or disposed of in such other
manner as he may deem proper.) (Inserted by
Notification No. RD 221 PES 358, dated 3-9-1958)
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[(d) Where the quit-rent due on an Inam land or
village has been apportioned amongst several
shareholders, and the lands held by each sharer are
separately registered in the accounts, the holder of
each sub-divided portion will be responsible for the
quit-rent due on his portion only, but where no
such apportionment of quit-rent has taken place,
and the proprietary right in an Inam village is held
jointly by several persons, the joint liability of the
shareholder should be insisted upon for arrears of
quit-rent due to Government. If, however,
shareholders, notwithstanding that the lands are
not divided, wish to have their shares separately
registered, so that each sharer may pay his quota
of the Government dues, and produce before the
Deputy Commissioner an agreement signed by all
of them, containing a full statement of the shares
held by each and the amount of quit-rent payable
by him, their several shares may accordingly be
registered; and in such case, or where the shares
have already been separately registered as Vrittis,
the quit-rent due by each sharer may be collected
from him. If any shareholder falls into arrear, his
share shall first be sold and if it does not realize the
arrear due, the joint responsibility may then be
enforced and the other shares also sold, after due
notice. The purchaser of the share sold will acquire
all the rights of the defaulter, but free of all
encumbrances created by him.
(e) The certificate of sale of immovable property, to
be granted under Sections 187 and 188, shall be in
Form of Appendix K, and shall be engrossed on
impressed stamp paper to be produced by the
purchaser.]
21.21. Section 187 of the Mysore Land Revenue Code,
1888, is reproduced hereunder for easy
reference:
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Section 187 - On confirmation of sale,
purchaser to be put in possession. Certificate of
purchase
After a sale of any occupancy or alienated holding
has been confirmed in manner aforesaid, the Deputy
Commissioner shall put the person declared to be the
purchaser into possession of the land included in
such occupancy or alienated holding, and shall cause
his name to be entered in the revenue records as
occupant or holder in lieu of that of the defaulter, and
shall grant him a certificate to the effect that he has
purchased the occupancy or alienated holding to
which the certificate refers.
21.22. As regards Survey No. 68, he submits that this
land had been granted in favour of
Sri.Muniyappa Devanalli, which is not in
dispute. Once a grant has been made, again
Section 20 of the MFR 1900 would become
applicable to the said survey No. 68. A
mortgage having been created on the said land,
proceedings having been initiated before the
Assistant Registrar of Co-operative Societies, it
is said Assistant Registrar who conducted an
auction where Smt.Sajeeda Begum was
declared successful. Thus, this auction was also
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conducted by an officer of the government and
as such, the government cannot now contend
that the grant in favour of Muniyappa and the
auction conducted by the Assistant Registrar of
Co-operative Societies would not confer any
right and or that the Forest Department
continues to hold a right in the said property.
21.23. The impugned notice having been issued under
Section 64A, of the KFA 1963, invoking Section
24G, 24GG, 24H and 73D of the KFA of 1963,
as also Rule 41(2) of the KFR of 1969 and
Section 2(2) of the Forest Conservation Act
1980 ['FCA of 1980' for short], would not be
applicable to the present case. Section 64A of
the KFA is reproduced hereunder for easy
reference:
64A. Penalty for unauthorisedly taking possession of
land constituted as reserved forest, district forest,
village forest, protected forest and any other land
under the control of the Forest Department.--
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(1) Any person unauthorisedly occupying any land
in reserved forest, district forest, village forest,
protected forest and any other land under the
control of the Forest Department may, without
prejudice to any other action that may be taken
against him under any other provision of this Act or
any other law for the time being in force, be
summarily evicted, by a Forest Officer not below the
rank of an Assistant Conservator of Forests and any
crop including trees raised in the land and any
building or other construction erected thereon shall,
if not removed by him within such time as the
Forest Officer may fix, be liable to forfeiture:
Provided that before evicting a person under this
sub-section he shall be given a reasonable
opportunity of being heard.
(2) Any property forfeited under sub-section (1)
shall be disposed of in such manner as the Forest
Officer may direct and the cost of removal of any
crop, building or other work and of all works
necessary to restore the land to its original
condition shall be recoverable from the person
evicted in the manner provided in section 109.
(3) Any person aggrieved by an order of the Forest
Officer under subsection (1) may, within such period
and in such manner as may be prescribed, appeal
against such order to the State Government or to
such officer as may be authorised by the State
Government in this behalf and the order of the
Forest Officer shall, subject to the decision in such
appeal, be final
21.24. Section 64A contemplates unauthorizedly
occupying any land in a reserve forest, district
forest, village forest, protected forest or any
other land under the control of the Forest
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department. This, he submits, is a free
condition for the exercise of powers under
Section 64A. Once there is a grant which has
been made by the State government, either in
favour of defence personnel or in favour of
Sri.Muniyappa even assuming that the land is
waste forest land, by way of such grant, the
exception in terms of Section 20, of the MFR
1900 would apply, this land would no longer
continue to be forest land, either as reserved
forest, district forest, village forest or protected
forest and obviously the same would not be in
control of the Forest department, since the
grantee was in control thereof. Therefore, he
submitted that the precondition required for the
application of Section 64A not being satisfied,
the question of the State government seeking
to forfeit the said land would not arise.
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21.25. Section 24 is reproduced hereunder for easy
reference:
24. Acts prohibited in reserved forests.--Any
person who,--
(a) makes any fresh clearing prohibited by section 6,
or
(b) sets fire to a reserved forest or in contravention
of any rules made by the State Government in this
behalf, kindles any fire, or leaves any fire burning, in
such manner as to endanger such a forest; or any
person who, in a reserved forest,--
(c) in contravention of the rules made in this behalf
by the State Government,--
(i)kindles, keeps or carries any fire except at such
seasons as the Forest Officer may notify in this
behalf;
(ii)trespasses or pastures cattle, or permits cattle to
trespass;
(d) causes any damage by negligence in felling any
tree or cutting or dragging any timber;
(e) fells, cuts, girdles, lops, taps or burns any tree or
strips off the bark or leaves from, or otherwise
damages the same;
(f) quarries stone, burns lime or charcoal, or collects,
subjects to any manufacturing process, or removes,
any forest produce;
(g) clears or breaks up any land for cultivation or any
other purpose;
[(gg) unauthorisedly occupies land for any purpose
(h) damages, alters or removes any cairn, wall,
ditch, embankment, fence, hedge, or railing;
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(i) poisons or dynamites water;
(j) in contravention 1[of any law or rules, enters any
reserved forest with fire arms or any other weapon
meant for hunting]1, hunts, shoots, fishes or sets
traps or snares, or who abets committing of any of
the above prohibited acts shall, on conviction, be
punishable with imprisonment for a term which may
extend to 2[one year or with fine which may extend
to two thousand rupees]2, or with both, and in
addition be liable to pay such compensation for the
damage done to the forests as the convicting court
may direct to be paid.
21.26. What has been proposed to be invoked against
the petitioners are Section 24G which relates to
clearing or breaking up of any land for
cultivation or any other purpose, Section 24GG
which relates to unauthorizedly occupying the
land for any purpose and Section 24H relates to
damaging, altering or removing any cairn, wall,
fence etc. or destroying the land for any
purpose.
21.27. What has been proposed to be invoked against
the petitioners is Section 24G, which relates to
unauthorizedly occupying the land for any
purpose in a reserved forest. He submits that
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when section 64A is not applicable, by virtue of
the land granted not being a reserved forest,
district forest, village forest or protected forest,
section 24 being applicable only to reserved
forest, cannot be pressed into service as
regards either survey No. 68 or 69 of
Chikkasane village.
21.28. Section 73 of the KFA 1963 would also not be
applicable. Section 73 is reproduced hereunder
for easy reference:
73. Penalty for counterfeiting or defacing
marks on trees or timber and for altering
boundary marks.--Whoever, with intent to cause
damage or injury to the public or to any person, or
to cause wrongful gain as defined in the Indian
Penal Code,--
(a) knowingly counterfeits upon any timber or
standing tree a mark used by Forest Officers to
indicate that such timber or such tree is the
property of the Government or of some person, or
that it may lawfully be cut or removed by some
person; or
(b) unlawfully affixes to any timber or standing tree
a mark used by Forest Officers; or
(c) alters, defaces or obliterates any such mark
placed on any timber or standing tree by or under
the authority of a Forest Officer; or
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(d) alters, moves, destroys or defaces any boundary
mark of any forest or waste land to which the
provisions of this Act are applicable; shall, on
conviction, be punishable with imprisonment which
may extend to two years, or with fine, or with both.
21.29. Section 73 relates to boundary marks of
forests, more particularly Sub-section (D) of
Section 73 relates to altering, moving,
destroying or defacing a boundary mark of any
forest or wasteland to which the provisions of
the Act are applicable. The present lands not
being forest land, there being a grant as
aforesaid, the question of Section 73 being
made applicable would not arise.
21.30. As regards violation of Rule 41 of the Karnataka
Forest Rules 1969, he submits that these Rules
came into force in the year 1969 and would not
be applicable to the grants which had been
made in the year 1936 and 1945. Rule 41 is
reproduced hereunder for easy reference:
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41. Grant of lands by the Deputy Commissioner:
(1) No land containing valuable trees or other forest
growth shall be granted by the Deputy
Commissioner, unless the concerned 1[Deputy
Conservator of Forests] gives his concurrence.
(2) No land from well wooded areas or adjacent to
wooded areas in the district or protected forests or
within 100 metres of reserved forests shall be
granted for occupancy.
(3) No land containing 25 or more sandal trees of
over 20 cm, in girth at 1.37 metres from ground level
per hectare shall be given out for cultivation or other
purpose or leased for any purpose, except with the
concurrence of the 1[Deputy Conservator of Forests]
or of the Conservator of Forests.
(4) Lands containing smaller number of such
developed sandal trees or sandal trees of lesser girth
may be given out for occupancy by the Deputy
Commissioner in consultation with the 1[Deputy
Conservator of Forests], unless in the opinion of the
latter they are valuable sandal-bearing areas. The
Deputy Commissioner, before granting, such land,
shall get a complete and correct list of all sandal
trees and saplings in the land and record the list in
the register maintained for the purpose and obtain an
agreement from the grantee for preserving all such
trees.
21.31. His submission is that Sub-rule (2) of Rule 41
would apply to protected forests or within a
100-meter radius of reserved forests, which
cannot be granted by the Deputy
Commissioner. This prohibition of grant having
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been introduced in the year 1969, he submits
that there was no such prohibition which was in
existence in the year 1932 when the grant was
made in favour of Defence Personnel, and in
the year 1945 when a grant was made in
favour of Sri.Muniyappa. Thus, going on to
contend now that there was a grant made by
the Deputy Commissioner in violation of sub-
Rule (2) of Rule 41, is a complete
misconception on part of the Forest
Department. He submits that Section 2 of the
FCA of 1980 would also not be applicable
inasmuch as the said Section relates to
restrictions on de-reservation of forest or use of
forest land for non-forest purposes. This Act
also came into force in the year 1980, and
cannot be made retrospectively applicable to
actions which have been taken in the year 1932
and 1945. His submission is that Section 2 of
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the FCA of 1980 would be applicable only to
forest lands which are still forest lands as on
the day the FCA of 1980 came into force.
21.32. The revenue records never having indicated
that the lands were forest land, there being no
document indicating that the Forest department
has any title over the property or control over
the land, the revenue documents too indicate
that the title of the land in survey No. 68 and
69 was vested with the predecessors of the
Petitioners and subsequently with the
Petitioners. The revenue documents being
contrary to any of the claims made by the
Forest Department, the Forest Department or
any other department of the government
cannot claim any interest in the land in survey
No. 68 and 69. These proceedings amount to
harassment of the Petitioners when the land is
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not forest land; Section 64A of the KFA cannot
be involved.
21.33. He relies upon the decision of the Hon'ble Apex
Court in B.S. Sandhu vs Government of
India and Ors.4, more particularly para nos.
16 and 17 thereof, which are reproduced
hereunder for easy reference:
16. The High Court has also taken a view in the
impugned order [Court on Its Own Motion v. State of
Punjab, (2004) 4 RCR (Civil) 619 : (2005) 2 ICC 16
(P&H)] that as the entire land of Village Karoran,
District Ropar, was closed in the PLP Act, 1900, it
was "forest land" for the purpose of Section 2 of the
Forest (Conservation) Act, 1980. Para 53 of the
impugned order [Court on Its Own Motion v. State of
Punjab, (2004) 4 RCR (Civil) 619 : (2005) 2 ICC 16
(P&H)] of the High Court is quoted hereinbelow:
[Court on Its Own Motion case [Court on Its Own
Motion v. State of Punjab, (2004) 4 RCR (Civil) 619 :
(2005) 2 ICC 16 (P&H)] , RCR (Civil) p. 644]
"53. For the reasons aforementioned and relying
upon the expression 'forest' and 'forest lands' as
defined by Their Lordships in T.N. Godavarman
case [T.N. Godavarman Thirumulpad v. Union of
India, (1997) 2 SCC 267] and the principles laid
down in M.C. Mehta case [M.C. Mehta v. Union of
India, (2004) 12 SCC 118] , we hold that the
entire land of Village Karoran which has been
notified under Section 3 of the PLP Act, 1900 and
is regulated by the prohibitory directions notified
under Sections 4 and 5 thereof, is a 'forest land'
and attract the provisions of Section 2 of the
4
(2014)12 SCC 172
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Forest (Conservation) Act, 1980, if sought to be
used for 'non-forest purposes'."
17. Hence, the first question that we have to decide is
whether the conclusion of the High Court that the land
which is notified under Section 3 of the PLP Act, 1900
and is regulated by the prohibitory directions notified
under Sections 4 and 5 of the aforesaid Act is "forest
land" is correct in law. Sections 3, 4 and 5 of the PLP
Act, 1900 as it was originally enacted are extracted
hereinbelow:
"3. Whenever it appears to the local Government
that it is desirable to provide for the better
preservation and protection of any local area,
situated within or adjacent to the Sivalik
mountain range or affected or liable to be
affected by the deboisement of forest in that
range or by the action of chos, such Government
may, by notification, make a direction
accordingly.
4. Power to regulate, restrict or prohibit, by
general or special order, within notified areas,
certain matters.--In respect of areas notified under
Section 3 generally or the whole or any part of any
such area, the local Government may by general or
special order temporarily or permanently, regulate,
restrict or prohibit--
(a) the clearing or breaking up or cultivating of land
not ordinarily under cultivation prior to the
publication of the notification under Section 3;
(b) the quarrying of stone or the burning of lime at
places where such stone or lime had not ordinarily
been so quarried or burnt prior to the publication of
the notification under Section 3;
(c) the cutting of trees or timber, or the collection or
removal or subjection to any manufacturing process,
otherwise than as described in clause (b) of this sub-
section of any forest produce other than grass, save
for bona fide domestic or agricultural purposes;
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(d) the setting on fire of trees, timber or forest
produce;
(e) the admission, herding, pasturing or retention of
sheep or goats or camels;
(f) the examination of forest-produce passing out of
any such area; and
(g) the granting of permits to the inhabitants of
towns and villages situate within the limits or in the
vicinity of any such area, to take any tree, timber or
forest produce for their own use therefrom, or to
pasture sheep or goats or to cultivate or erect
buildings therein and the production and return of
such permits by such persons.
5.Power in certain cases, to regulate, restrict or
prohibit, by special order, within notified areas,
certain further matters.--In respect of any
specified village or villages, or part or parts thereof,
comprised within the limits of any area notified under
Section 3, the local Government may, by special
order, temporarily regulate, restrict or prohibit--
(a) the cultivating of any land ordinarily under
cultivation prior to the publication of the notification
under Section 3;
(b) the quarrying of any stone or the burning of any
lime at places where such stone or lime had
ordinarily been so quarried or burnt prior to the
publication of the notification under Section 3;
(c) the cutting of trees or timber or the collection or
removal or subjection to any manufacturing process,
otherwise than as described in clause (b) of this sub-
section, of any forest produce for bona fide domestic
or agricultural purposes; and
(d) the admission, herding, pasturing or retention of
cattle generally other than sheep and goats, or of
any class or description of such cattle."
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21.34. By relying on B.S.Sandhu's case, his
submission is that the word 'forest' must be
understood according to its dictionary meaning
and must cover all statutorily recognised
forests. Even if a forest, as held in T.N. Goda
Varman's case, were to be understood to
apply to areas recorded as forest in the
government record, irrespective of ownership,
the same would not be applicable to the
present case, since there is no ownership
recorded of survey Nos. 68 and 69 in the name
of the government. What is required to be
considered is whether the said land was forest
land or not, when FCA 1980 came into force,
that is, as on 25.10.1980, on the basis of
documents available on record.
21.35. This is not a matter which will require a trial of
a disputed question of fact, inasmuch as it is for
the Forest Department to establish by any
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document on record that the land in Survey
Nos. 68 and 69 were forest land, as on
25.10.1980. There being no such documents
that had been placed on record, the Forest
Department having filed a suit for declaration of
title by declaring it to be forest land, there is a
dispute which existed as on 25.10.1980 as
regards the very nature of the land. The same,
not being forest land, the decision in
T.N.Godavarman's case would not be
applicable to the present case.
21.36. He submits that the proceedings and the Show-
cause notice in the present case have been
issued in the very same quashed proceedings in
FOC No. 7 to 9, 13 and 14 of 2006-07. Once
those proceedings have been quashed, they
cannot be revived in a manner other than that
known to law, which should have been only by
way of an order of a superior Court. Those FOC
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proceedings having been quashed, there being
no revival of the said proceedings, no fresh
Show-cause notice could be issued in the very
same proceedings; those proceedings do not
exist in the eyes of the law as of today.
21.37. On the above basis, he submits that the writ
petitions have to be allowed and the reliefs
sought ought to be granted.
22. Mr.Kiran Ron, the Additional Advocate General,
appearing for the State and Forest Department,
would submit that,
22.1. What is challenged in the present proceedings
are six show cause notices, all dated
13.11.2020, issued by Respondent No.2, under
Section 64A of the KFA of 1963 calling upon the
Petitioners to submit all the relevant documents
in the enquiry to be held on 19.11.2020, the
said notices had been issued in pursuance of
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the government notification bearing No. R7803-
6, dated 08.01.1921, whereunder the State
forest came to be constituted, on the ground
that the Petitioners had encroached on the
land.
22.2. He relies upon the decision in Union of India
and Anr vs Kunisetty Satyanarayana5, more
particularly para nos.13 and 14 thereof, which
are reproduced hereunder for easy reference:
13. It is well settled by a series of decisions of this
Court that ordinarily no writ lies against a charge-
sheet or show-cause notice vide Executive Engineer,
Bihar State Housing Board v. Ramesh Kumar
Singh [(1996) 1 SCC 327 : JT (1995) 8 SC 331]
, Special Director v. Mohd. Ghulam Ghouse [(2004)
3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC
1467] , Ulagappa v. Divisional Commr.,
Mysore [(2001) 10 SCC 639] , State of
U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 :
(1987) 3 ATC 319 : AIR 1987 SC 943] , etc.
14. The reason why ordinarily a writ petition should
not be entertained against a mere show-cause
notice or charge-sheet is that at that stage the writ
petition may be held to be premature. A mere
charge-sheet or show-cause notice does not give
rise to any cause of action, because it does not
amount to an adverse order which affects the rights
of any party unless the same has been issued by a
person having no jurisdiction to do so. It is quite
5
(2006)12 SCC 28
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possible that after considering the reply to the
show-cause notice or after holding an enquiry the
authority concerned may drop the proceedings
and/or hold that the charges are not established. It
is well settled that a writ petition lies when some
right of any party is infringed. A mere show-cause
notice or charge-sheet does not infringe the right of
anyone. It is only when a final order imposing some
punishment or otherwise adversely affecting a party
is passed, that the said party can be said to have
any grievance.
22.3. By relying on Kunishetti-Satnayana's case,
he submits that a show-cause notice cannot be
challenged in writ proceedings.
22.4. He again reiterates that the High Court should
be extremely circumspect while dealing with a
writ petition against a show-cause notice. Thus,
he submits that any and all contentions which
have been taken up by the petitioners in the
present matter could be taken up before the
second respondent in answer to the show-cause
notice. The same is not required to be
considered by this Court in detail as sought to
be contended by the Petitioners. He submits
that Petitioners No. 2 to 5 in WP No.392/2021
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are related to each other. Petitioner No. 1
therein is a developer who has entered into a
JDA with Petitioner No. 2 to 5 in WP 392, as
also Petitioner in WP No. 1964/2024. The lands
subject matter of the joint development
agreement being Survey No.68 and 69 which
are forest lands.
22.5. The land in survey No. 66, 67 of Chikkasane
and survey No. 14 of Bhuvanahalli, which were
then existing survey nos., were declared to be
comprised of the Bhuvanahalli State Forest,
vide Gazette Notification No. R7807-FT-126-20-
8, dated 08.01.1921. These survey nos.
underwent a change with survey No. 66 being
renumbered as survey No. 68, survey No. 67
being renumbered as survey No. 69, survey
No.14 being renumbered as survey No.30 and
as such the new numbers survey No. 68 and 69
which the petitioners claim ownership of were
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actually old No. 66 and 67 which were declared
to be forest land and as such the gazette
notification dated 08.01.1921 would be
applicable to the present land. A table of survey
Nos and change thereof is produced hereunder:
2. As this land is declared as Bhuvnahalli State Forest
vides Gazette Notification No. R.7807-Ft-126-20-8,
dated 8th January 1921 and the extent of the forest area
with respect to village and survey number as follows:
Sl. Village Old Sy. New Sy. Extent
No. Name NO. No. (A-G)
1 Chikkasanne 66 68 16-18
2 Chikkasanne 67 69 34-09
3 Bhuvanahalli 14 30 8-21
Total 59-08
22.6. The aforesaid land, measuring 59 acres 8
guntas was declared as Bhuvanahalli State
Forest under Section 17 of the Mysore Forest
Regulation, 1900 in the year 1921. Any
transaction post 1921 as regards the aforesaid
land, which is declared as State Forest, is illegal
and cannot be used for any non-forestry
purposes. In this regard, he relies upon the
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decision of the Hon'ble Apex Court in State of
Karnataka vs I.S. Nirvane Gowda6, more
particularly para no. 4 thereof, which is
reproduced hereunder for easy reference:
Learned counsel for the appellants contended that
the High Court committed a serious error in
interfering with the concurrent findings recorded by
both the courts below when those finding s were
based on proper consideration and appreciation of
evidence brought on record. The learned counsel
contended that Exh. D.1- being the true copy of the
gazette Notification dated 26t h June, 1937, was
rightly accepted by the Trial Court as well as the
First Appellate Court an d the High Court was not
justified in not accepting the same particularly when
it had become a part of the record and no objection
had been taken by the respondents at the time of
recording the evidence. He also submitted that
Exh.D.2, being the statement of lands taken for
Indavara State Forest in Hukkund Village, should
have been accepted . He further submitted that
Hanumanthappa- the Range Forest Officer
supported the case of the appellants on the basis of
the record. Merely because the Higher officer in the
department was not examined, his testimony could
not be rejected. The trial court as well as the first
appellate court, based on the evidence, recorded
findings that the lands in question were the part of
reserved forest. We do not find any good ground or
a valid reason for rejection of Exh.-D.1 by the High
Court. When the lands were included in reserve
forest, the entries in the revenue records were of no
consequence and further mere Saguvali Chits did
not confer any title on the suit lands. This apart the
revenue authorities were not competent to deal with
the property which were the part of the reserved
forest. Th e First Appellate Court was right in
affirming the judgment and decree of the Trial
6
CA No. 7309-10 of 1996
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court. We find it difficult to sustain the impugned
judgment and decree as far as these respondents-
I. S. Nirvane Gowda and B. Govindaraj in these two
appeals are concerned. In this view these appeals
are entitled to succeed.
22.7. By relying on Nirvane Gowda's case, he
submits that where the lands were included in a
reserved forest, the revenue records were of no
consequence, issuance of saguvali chits and or
the like did not confer any title on the said land.
The revenue authorities were neither
competent nor did they have the authority to
deal with forest land.
22.8. He relies upon Section 30 of the MFR 1900,
which is reproduced hereunder for easy
reference:
30. (1) The Government may, by notification in the
official Gazette, direct that, from a date to be fixed
by such notification, any forest constituted a State
Forest under this Regulation or any portion thereof,
shall cease to be a State Forest or portion of a State
Forest.
(2) From the date so fixed, such forest or portion
shall cease to be a State Forest or portion of a State
Forest; but the rights, if any, which have been
extinguished therein shall not revive in
consequence of such cessation.
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22.9. By relying on Section 30, he submits that the
government may, by notification, in the official
gazette, direct any forest constituted as a State
forest under that regulation and or issue a
notification that it shall cease to be a State
forest or a portion of a State-forest. Thus, he
submits that unless and until the government
issues such a notification under Section 30, any
particular survey No. and or the extent thereof
ceases to be a State forest or a portion of a
State forest, such survey no. and the land
comprised therein shall continue to be a state
forest, as regards which the Petitioners cannot
claim any equity.
22.10. The Government Land Protection Committee
had called upon the District Commissioner of
Bangalore and the Tahsildar, Devanahalli, to
furnish details regarding the grant of the land
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to the defence personnel, which was auctioned
in favour of Sri.Subbraya Mudaliyar. The
Tahsildar, Devanahalli Taluk, has written to the
District Commissioner on 02.12.2020, that
there is no record found in his office regarding
the grant of the disputed land to any defence
personnel, namely Shri. Manikaraj or otherwise,
and subsequently auctioned in favour of Sri.
Subbaraya Mudaliyar.
22.11. The Tahsildar has confirmed that the land
belongs to the Forest Department, as per the
aforesaid gazette notification dated 08.01.1921.
As such, he submits that there being no grant
made in favour of the defence personnel, the
question of the Petitioners claiming an interest
under the so-called grant and the subsequent
auction on account of non-payment of land
revenue is bereft of merits and is not
sustainable.
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22.12. The proceedings which had been initiated in OS
No.1424/2006 and the subsequent proceedings
thereof, were not required to be so initiated by
the forest department. The said proceedings
have been initiated under ill advice. The
Notification continues to hold force; it is the
said notification which is required to be
implemented and which is now sought to be
implemented. The existence of the said suit,
the appeal and or any proceedings, will not
take away the applicability of the notification
issued on 08.01.1921.
22.13. As regards the joint survey conducted on
28.01.2015 and 29.01.2015 by the Tahsildar
Bhuvanahalli, in pursuance of the Order Dated
13.06.2012 in Criminal Petition No. 1852-1857
of 2012, he submits that the Assistant
Commissioner having received the said survey
report on 12.06.2015 being of the opinion that
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the said joint survey was not conducted in
accordance with the Gazette notification dated
08.01.1921, had requested the Range Forest
Officer, the Assistant Conservator of Forests,
Deputy Conservator of Forests, for a fresh
survey in terms of the notification dated
08.01.1921 and as such, had not accepted the
joint survey.
22.14. Thereafter, the Technical Assistant and Deputy
Director of Land Records, Bangalore Rural
District, were directed by the Tahsildar,
Devanahalli Taluk to conduct a joint survey,
according to the notification dated 08.01.1921,
vide their correspondence dated 21.04.2017.
22.15. On 10.07.2017, the ADLR, Devanahalli Taluk,
issued a notice to attend the joint survey to be
conducted on 25.07.2017. Though Petitioner
No.1 received the notice, the other Petitioners
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refused to receive the notice. A survey was
conducted in the presence of Petitioner No. 3-
Sri. M. A. Mohammad Amanullah, who refused
to sign the Mahazar, which is apparent from the
report of the Assistant Conservator of Forests
dated 16.09.2017 addressed to the Deputy
Conservator of Forests. He submits that the
joint survey conducted earlier by the Tahsildar
not being in accordance with the notification of
08.01.1921, a fresh survey was conducted in
accordance with said notification, and it is this
survey report which is the root cause for the
issue of the impugned show-cause notices.
22.16. This, he submits, are changed circumstances
which are required to be considered. Liberty
having been reserved by this Court in an order
dated 13.06.2012 in criminal petition No. 1852
to 1857 of 2012, to conduct a joint survey and
proceed therefrom, the said joint survey has
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been conducted and proceeded therefrom in the
very same proceedings, namely FOC 7. Hence,
the Petitioners cannot have any grievance
therewith. The quashing of FOC No.7, 8, 9, 13
and 14 of 2006-07 was only with reference to
the joint survey not having been conducted and
liberty having been reserved to conduct such a
survey. A survey now having been conducted in
terms of the notification dated 08-01-1921,
encroachment having been found, the
authorities are well within their rights to issue a
show cause notice, which is required to be
replied to by the Petitioners , which will be
considered in accordance with law. Hence, the
present writ petition is not maintainable.
22.17. The Authorities are only implementing the
orders dated 13.06.2012 in Criminal Petition
No. 1852 to 1857 of 2012, therefore, the
Petitioners cannot have any grievance in
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relation thereto. Encroachment having been
found, proceedings having been initiated under
section 64A, the land having been notified as a
forest land, cannot be used for any other
purpose other than forest purposes. The
Petitioners are seeking to play on the change in
the survey nos.. The old survey No. 66 of
Chikkasane village has now been renumbered
as survey No. 68, Survey No. 67 of Chikkasane
village is now renumbered as survey No. 69.
22.18. This confusion in the numbering had resulted in
the Tahsildar submitting earlier survey reports
in respect of old survey No. 66 and old survey
No. 67, and not with reference to new survey
Nos. 68 and 69. Irrespective of the numbering,
what is required to be considered is the
boundaries of the notification of 1921, and
those boundaries have now been considered
and a new survey made; the land claimed by
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the petitioners coming within the boundaries of
the forest land, action has been taken which
cannot be found fault with.
22.19. The land measuring 59 acres 8 guntas
continues to be forest land, in fact insofar as
survey No. 30 which is also forest land, new
survey No. 30 of Bhuvanahalli, which is stated
to be forest land by the authorities concerned
would establish the claim of the forest
department that the notification as regards the
old survey numbers would also continue to
apply to the new survey Numbers. The
subsequent sales which have occurred after the
notification had been issued on 18.01.1921,
there being no fresh notification in section 17 or
30 of the MFR 1900, post the notification dated
08.01.1921, the question of anyone claiming
any right in the land notified to be a forest land
under Gazette notification is not sustainable, so
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also any other claim made subsequent thereto
under any auction, sale or subsequent sale
thereto.
22.20. There being large amounts of forest lands which
have been so encroached, the government
Land Protection Committee has been created to
recover forest lands from private individuals
who have encroached such valuable forest
lands and by virtue of the same, these kinds of
issues have surfaced. His submission is that the
concerned State authorities ought to discharge
their functions in a proper manner. Any
document and/or reply that is placed before the
concerned officers would be considered from
the right perspective, and orders would have to
be passed.
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22.21. The above petitions, being premature, cannot
be entertained until orders are passed by the
concerned officer.
22.22. The purported auction in the year 1936 is
subsequent to the final notification dated
08.01.1921. Once a particular land has been
constituted as a State/reserve forest, there
being no challenge thereto, the question of
contending that it is an alleged grant, the said
land does not continue to be forest land is
completely misplaced. Irrespective of the suit
having been filed by the Forest Department, he
submits that the action taken by the Officers of
the Forest Department under the relevant
provision are sustainable and the writ petitions
are required to be dismissed.
22.23. He relies upon the decision of the Hon'ble Apex
Court in Commissioner, BDA and Anr vs
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Brijesh Reddy and Anr7, more particularly
para no. 18 thereof, which is reproduced
hereunder for easy reference:
18. It is clear that the Land Acquisition Act is a
complete code in itself and is meant to serve public
purpose. By necessary implication, the power of the
civil court to take cognizance of the case under
Section 9 CPC stands excluded and a civil court has
no jurisdiction to go into the question of the validity
or legality of the notification under Section 4,
declaration under Section 6 and subsequent
proceedings except by the High Court in a proceeding
under Article 226 of the Constitution. It is thus clear
that the civil court is devoid of jurisdiction to give
declaration or even bare injunction being granted on
the invalidity of the procedure contemplated under
the Act. The only right available for the aggrieved
person is to approach the High Court under Article
226 and this Court under Article 136 with self-
imposed restrictions on their exercise of
extraordinary power.
22.24. By relying on Brijesh Reddy's case, he
submits that there is a bar under the Forest
Conservation Act for the civil court to exercise
jurisdiction. Even as regards the suit which had
been filed by the forest department, no finding
could be rendered by a civil court in respect of
forest land. The said civil suit filed before a civil
7
(2013) 3 SCC 66
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court is devoid of jurisdiction, and as such, any
finding rendered even in favour of the
petitioners being without jurisdiction, cannot be
considered by the Court.
22.25. He also relies upon the decision of the Hon'ble
Allahabad High Court in Divisional Forest
Officer, North Kheri vs Surjan Singh and
Ors. 8, more particularly para Nos.22, 25, 30
and 37 thereof, which is reproduced hereunder
for easy reference:
22. In view of above, once the notification has been
issued under Section 4 of the Act of 1927, all claims
can be raised before the Forest Settlement Officer,
who can consider the same and decide the claim
after affording opportunity of evidence exercising
the powers of a civil court in the trial of the suit.
After finalisation of the proceedings, the notification
under Section 20 is issued declaring the land as
reserved forest. Section 20 of the Act of 1927 is
extracted hereinbelow:
"20. Notification declaring forest reserved.--
(1) When the following events have occurred,
namely:
(a) the period fixed under Section 6 for preferring
claims have elapsed and all claims (if any) made
under that section or Section 9 have been disposed
of by the Forest Settlement Officer;
8
(2024) SCC Online Allahabad 661
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(b) if any such claims have been made, the period
limited by Section 17 for appealing from the orders
passed on such claims has elapsed, and all appeals
(if any) presented within such period have been
disposed of by the appellate officer or court; and
(c) all lands (if any) to be included in the proposed
forest, which the Forest Settlement Officer has,
under Section 11, elected to acquire under
the Land Acquisition Act, 1894 (1 of 1894), have
become vested in the Government under Section
16 of that Act, the State Government shall publish
a notification in the Official Gazette, specifying
definitely, according to boundary marks erected or
otherwise, the limits of the forest which is to be
reserved, and declaring the same to be reserved
from a date fixed by the notification.
(2) From the date so fixed such forest shall be
deemed to be a reserved forest.
State Amendments
Uttar Pradesh- In Section 20, in sub-section (1),
for clause (b), substitute the following clause,
namely--
(b) if any such claims have been made, the period
limited by Section 17 for appealing from the orders
passed on such claims has clasped and all appeal
(if any) persented within such period have been
disposed by the District Judge; and
[Vide Uttar Pradesh Act 23 of 1965, Section 8
(w.e.f. 23-11-1965)]."
25. In view of above, it is evident that as per
scheme of the Act, in the proceeding beginning with
notification under Section 4, all claims regarding land
included in the notification are adjudicated by an
authorised officer i.e. Forest Settlement Officer, who
exercises all the powers of the civil court in trial of
the suits as per Section 8, the appeal of which can
be preferred under Section 17. Section 5 of the Act
of 1927 provides that after issue of a notification
under Section 4, no right shall be acquired in or over
the land comprised in such notification, except by
succession or under a grant or contract in writing
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made or entered into by or on behalf of the
Government or some person in whom such right was
vested when the notification was issued. The said
notifications published in the Official Gazettes are
public documents which need not be proved and
they shall be deemed to have been issued in
accordance with law after following the due
procedure of law.
30. In State of U.P. v. Kamal Jeet Singh2, the
Division Bench of this Court considered the scheme
of the Forest Act and has held that the Forest
Settlement Officer has the powers of a civil court and
once the notification under Sections 4 and 20 of the
Forest Act has been issued, it attains finality and
except revision before the State no authority has
jurisdiction to determine the rights as contained in
Section 27-A of the Forest Act. Thus, the Revenue
Authorities could not have determined the rights
under Section 229-B of the U.P. Z.A. & L.R. Act,
1950.
37. It is also noticed that the trial court examined
the legality and validity of the notification issued
under Sections 4 and 20 of the Act of 1927 without
being challenged, whereas the same could not have
been done because the same could even not have
been challenged in suit for permanent injunction. The
notification issued under the statutory provision could
not be held illlegal without being challenged. Even
otherwise, the trial court has held that it is not
completely legal, meaning thereby it's legality has
not been disputed but it has been held only on the
ground that the appellant has failed to prove as to
when notice of the notification was given to the
respondents and when it's munadi was done,
whereas once notification under Sections 4 and 20 of
the Act of 1927 were issued and published in Official
Gazette, it will be deemed that they have been issued
in accordance with law after following due procedure
of law and it could not have been held illegal or
inoperative without challenge to the notifications in
appropriate proceedings but not in a suit for
permanent injunction.
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22.26. By relying on Surjan Singh's case, the
notification designating the particular land as
forest land having attained finality in the same
not having been challenged, this type of
notification would have to be taken at face
value and the rights of the parties determined.
22.27. By relying on Brijesh Reddy and Srujan
Singh's case he submits that whenever any
notification is issued under any particular
enactment, without challenging the said
notification, the contract cannot be alleged or
contended. If at all the Petitioners are
aggrieved by the notification dated 08.01.2021,
it is for them to have challenged the said
notification. No challenge having been made,
reliance on subsequent auction and or sale
deed would not be to the benefit of the
Petitioners so long as the notification of
08.01.2021 stands.
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22.28. Once again by referring to para no.4 of the
decision in Nirvani Gowda's case reproduced
supra, he submits that, any sale, any grant or
auction conducted, post the notification issued
on 08.01.1921 does not confer any right and
cannot be relied upon by the Petitioners. His
submission is also that by the mere usage of
the word 'grant', it would not de-reserve the
reserve forest without a de-notification. Mere
grant, even if accepted for the purpose of
argument, would not take away the reservation
of the land as a reserve forest, and in this
regard, he relies upon the decision of the
Division Bench of this Court in KSRTC vs
Mallaiah9, more particularly para no. 7 thereof,
which is reproduced hereunder for easy
reference:
7. Having heard the learned counsel for the parties and
having perused the Appeal Papers along with the
original Trial Court Records as also additional evidentiary
9
RFA No.1653/2011
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material placed on record with leave, we are inclined to
grant indulgence in the matter for the following reasons:
(a) Rivers and forests have defined civilizations
throughout the history of mankind. They were revered
and worshiped in ancient India as organic entities.
Kautilya's Arthashaastra mentions about the importance
of forest and forest departments. A lot of forest
jurisprudence has developed by the Apex Court through
a series of directions issued from time to time vide T.N.
Godavarman Thirumulpad Vs. Union of India. Judicial
Institution is a stake holder along with other. The Apex
Court in Common Cause vs. Union of India1 has
observed that natural recourses such as air, water,
forest, lakes, rivers & wildlife are public properties; they
are entrusted to the Government for safe & proper use.
The doctrine of public trust enjoins upon the
Government to protect these resources. Hugo Grotius
(1583-1645) centuries ago declared "That belongs to all
belongs to none and that belongs to none belongs to
all". India is a signatory to several International
Conventions concerning Forests, Ecology and
Environment. These covenants/conventions which have
been ratified by India are binding to the extent that they
are not inconsistent with the provisions of the domestic
law2 . In cases relating to rivers and forests, the
constitutional courts are not mere arbiters but the stake
holders too. Cases of that nature cannot be treated as a
lis inter parte. All this should prelude our discussion in
the matter.
(b) Plaintiffs title came to be clouded in view of orders
made by the Tahasildar u/s 128, the orders made in
appeal by the Asst. Commissioner u/s 136(2) and
affirmation of these orders by the Deputy Commissioner
u/s 136(3) of the 1964 Act. At that level, entries in the
revenue records concerning the suit lands were mutated
in favour of the State Forest Department on the ground
that throughout the said entry stood that way since
1950 and that all of a sudden, Sri.Mayaga's name could
not have been entered in the place of Forest
Department, without any basis. Some of the plaintiffs
had filed W.P.No.29959/2009 laying a challenge to these
orders and a learned Single Judge of this court vide
judgement dated 9.6.2010 disposed off the petition
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relegating the plaintiffs to Civil Court inter alia on the
ground that disputed facts were involved. The plaintiffs
have structured their suit on the basis of revenue
entries and that they have not produced any other
material to vouch the title of Sri.Mayaga to these lands.
All other evidentiary material placed by them on record
has nothing to do with the title to the lands in question.
It has been a settled position of law that a suit for
declaration cannot be founded on entries in the revenue
records vide Apex Court decision in PRAHLAD PRADHAN
vs. SONU KUMHAR.
(c) The Appellant-State Government has produced in
this appeal the Mysore Government Notification dated
6.6.1929 issued u/s 17 of the 1900 Act whereby
Chamundibetta State Reserve Forest has been
constituted. Maharajas of Mysore Kingdom were known
for their love for Mother Nature in general and forests in
particular. They used to worship forests as Vanadevata
(Goddess of Forest). The Forest Map has also been
produced by the learned HCGP with leave of the court.
These are not only not disputed by the plaintiffs side but
their learned counsel seeks to rely upon them also to
show that the suit lands have not been comprised in the
said forest. True it is that the survey numbers in which
the suit lands are situate are not in so many words
found in the subject Notification or the Forest Map.
However, when a State Reserve Forest is sought to be
constituted by Notifications of the kind, the land
comprised therein is demarked by the boundary lines. If
suit lands obviously fall within the said boundary lines,
non-mentioning of the survey numbers pale into
insignificance. After all, it has been a settled position
since the days of Privy Council that as between numbers
denoting the area and the boundaries, the latter shall
prevail over the former, should there be discordance.
(d) A Coordinate Bench of this Court had an occasion to
consider how State Reserve Forest were formed under
the provisions of the very same statute namely 1900 Act
in W.P.No.23928/2018 (GM-FOR) between
B.R.GANAPATHI SINGH vs. STATE AND OTHERS. What
is observed in paragraphs 25 & 26 would fully support
the case of appellants and therefore, the said
paragraphs are reproduced:
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"In the instant case, by virtue of Notification dated
04.08.1994 and as per the boundaries indicated therein,
certain lands were declared to be constituted as
reserved forest i.e., by specifying the constitution and
limits of such land, by intelligible boundaries... A reading
of the provisions from Sections 4 to 17 of the Act would
indicate that when once it has been decided to
constitute land within certain boundaries as reserved
forest and a declaration is made to that effect then, a
proclamation has to be made by the Forest Settlement
Officer. There is a bar to accrual of forest rights over the
land comprised in the Notification, except by succession
or under a grant of contract in writing made or entered
into by or on behalf of the Government or some person
in whom such right, or power to create such right was
vested when the Notification was issued. Thereafter, the
Forest Settlement Officer shall have to make an inquiry
into all claims duly preferred. Where no claim is
preferred under Section 5 of the Act and of the
existence of which no knowledge has been acquired by
inquiry under Section 7 of the Act, all claims shall be
extinguished unless, before the final notification under
Section 17 of the Act is published, the Forest Settlement
Officer is satisfied that a person had sufficient cause for
not preferring such a claim within the period fixed under
Section 5 of the Act. In such case, the Forest Settlement
Officer shall proceed to dispose of the claim as per law.
Where a claim is admitted, the Forest Settlement Officer
has to specify certain details and record the same in the
final record. Subsequent to following of the procedure
contemplated under Sections 5, 6, 11 to 14 of the Act,
the State Government has to publish a Notification,
specifying clearly and according to the boundary marks
erected or otherwise, the limits of the forest which it
intended to constitute as reserved forest and declaring
the same to be a reserved forest from the date fixed by
such notification, subject to the exercise of rights (if
any) specified in such notification. From the date so
fixed, such forest shall be deemed to be a reserved
forest. A Notification issued under Section 17 of the Act
shall be published in accordance with Section 18 of the
Act."
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(e) There is force in the submission of learned counsel
appearing for the appellants that in the absence of any
challenge to the 1929 Notification, the constitution of
Chamundibetta State Reserved Forest would remain
intact by operation of law. 'Once a forest, always a
forest' should operate as a Thumb Rule vide NARINDER
SINGH vs. DIVESH BHUTANI5 , in these days when
forests are fast depleting with unprecedented
acceleration because of dreadful population growth and
allied factors. The Apex Court has specifically observed
that unless the forest is denotified, the same would
continue as forest ever. There is absolutely no material
on record to indicate that any subsequent Notification
was issued by the State Government denotifying the suit
lands from being State Reserve Forest.
(f) Learned Panel Counsel and the learned HCGP are
more than justified in pointing out that the Revenue
Records since 1950 had reflected the suit lands as being
'State Forest Acquired', for decades uninterruptedly.
However, for the first time, name of Sri.Mayaga S/o
Malla came to be entered only for the years 1970-71 to
1973-74. In some records, his name is continued for a
bit longer period, is also true. On what basis, these
entries came to be abruptly made in the name of a
private party remains a secret within the mystery
wrapped in enigma. Even in appeal, nothing has been
stated by the respondent plaintiffs, despite being
repeatedly asked. The other significant thing is that
even for these years, in the usage column of the RTC,
the word 'Acq' being the short form of acquisition
continues. From the year 1980-81, the entry 'State
Forest Acquired' is restored to other columns without
the name of Mayaga. There is a strong presumption in
the given circumstances u/s 133 of the 1964 Act as to
these long standing entries being genuine. Conversely,
the entries made in the Revenue Records sansany
conveyance or the like does not enjoy presumptive
value.
(g) Pursuant to 1929 Notification issued u/s 17 of the
1900 Act, as observed above, the Chamundibetta State
Reserve Forest came to be formed and it obviously
comprised of the suit lands. The Forest Map which is
more than thirty year old and which has come from the
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proper custody namely the Forest Department enjoys
presumptive value u/s 90 of the Indian Evidence Act,
1872, nothing of rebuttal having been shown. The
arguable absence of entries in the Revenue Records
would not rob away the legal effect of such a statutory
Notification, making of entries being only incidental to
the same. Whatever be that, there was 1935/1940
Notification issued under the 1894 Act, as well.
However, appellants too have not placed on record any
more material to show that the same resulted into
accomplishment of acquisition of the subject lands. Of
course, decades have rolled since the issuance of that
Notification, is obvious. In the Clin of Time, things
vanish and memory fades, needs no research to know.
(h) The long standing entries in favour of the Forest
Department would also lend credence to the contention
of Sri.P.D.Surana, learned Panel Counsel appearing for
the KSRTC that acquisition having been duly
accomplished, the said entries having been made
continued unopposed and therefore, even if 1929 Forest
Notification is held to have not comprised the suit lands,
there is absolutely no case for the plaintiffs' side. The
Apex Court in STATE OF KARNATAKA VS. I.S. NIRAVANE
GOWDA6 at paragraphs 3 & 4 has observed as under: "
... The learned counsel contended that Ext.D-1, being
the true copy of the Gazette Notification dated
26.6.1937, was rightly accepted by the trial Court as
well as the first appellate Court and the High Court was
not justified in not accepting the same particularly when
it had become a part of the record and no objection had
been taken by the respondents at the time of recoding
the evidence. He also submitted that Ext. D-2, being the
statement of lands taken for Indavara State Forest in
Hukkund Village, should have been accepted. ... The trial
Court as well as the first appellate Court, based on the
evidence, recorded findings that the lands in question
were the part of reserved forest. We do not find any
good ground or a valid reason for rejection of Ext. D-1
by the High Court. When the lands were included in
reserve forest, the entries in the revenue records were
of non consequence and further, mere saguvali chits did
not confer any title on the suit lands. This apart, the
Revenue Authorities were not competent to deal with
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the property which was the part of the reserved forest.
..."
(i) Learned counsel appearing for the State & its officials
is right in telling us that in view of the statutory scheme
enacted in 1900 Act as interpreted by the Coordinate
Bench in B.R.GANAPATHI SINGH supra, the suit itself
was not maintainable. The grievance of private citizens
in respect of land comprised in section 17 Notification
has to be worked out as provided under the very same
statute. In fact, at para 36, what has been observed
being supportive of this view, is reproduced: "Further, in
the aforesaid context, we do not think that there can be
any distinction with regard to a piece of land which has
been decided to be constituted as reserved forest under
Section 4(1) of the Act and land being deemed to be
reserved forest under Section 17 of the Act which is like
a final notification. The reason being, once the land is
constituted as reserved forest under Section 4(1) of the
Act, it is by issuance of a Notification then the claims
would have to be made and it is only on the
consideration of the claims that an application for
exclusion of the land constituted as reserved forest
under Section 4(1) of the Act could be ordered. Merely
because the procedure contemplated under the Act
subsequent to the issuance of a Notification under
Section 4 of the Act is not yet completed or no
Notification has been issued under Section 17(1) of the
Act, in our view, would not make any difference, as the
object and purpose of reserving any land is to treat the
said land as being constituted a reserved forest. If such
a land or any portion thereof is excluded on adjudication
of claims, it would not find a place in Notification issued
under Section 17 of the Act. In such a case, it would no
longer be constituted as reserved forest. But, till that
procedure is not completed by the Forest Settlement
Officer, it remains to be constituted as reserved forest."
(j) Had land owner Mayaga any grievance against the
formation of Reserve Forest inter alia because of
inclusion of the subject lands, he could have had
recourse for redressal as provided under the provisions
of 1900 Act itself. It is difficult to assume that
Sri.Mayaga had any such grievance inasmuch as he had
not instituted any proceedings either after the formation
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of State Reserve Forest or after the issuance of
1935/1940 acquisition Notification. It has been a settled
position of law that once a special statute establishes
separate machinery for working out the grievance,
ordinarily, the jurisdiction of civil courts stands excluded
vide a Five Bench decision in DHULABAI vs. STATE OF
MADHYA PRADESH7 . The following observations therein
are worth advertence: "1) Where the statute gives a
finality to the orders of the special tribunals the Civil
Courts' jurisdiction must be held to be excluded if there
is adequate remedy to do what the Civil Courts would
normally do in a suit... Where there is no express
exclusion the examination of the remedies and the
scheme of the particular Act to find out the intendment
becomes necessary and the result of the inquiry may be
decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and provides
for the determination of the right or liability and further
lays down that all questions about the said right and
liability shall be determined by the tribunals so
constituted, and whether remedies normally associated
with actions in Civil Courts are prescribed by the said
statute or not." Whether the contention as to
maintainability of a suit was specifically taken in the
pleadings or not, the same can be raised even in appeal,
needs no mentioning. However, such a contention is
loosely taken in the Written Statements.
(k) The vehement contention of learned counsel
appearing for the respondent-plaintiffs that if the 1929
Notification had comprised the suit lands for the
formation of State Reserve Forest, the 1935/1940
Notification would not have been issued under the 1894
Act, appears attractive at the first blush. However, a
deeper examination thereof shows its untenability:
firstly, it is crystal clear that the 1929 Notification has
formed the State Reserve Forest and the Forest Map
appended to the same also shows demarcation of
boundaries within which such a forest is declared.
Therefore, non-mentioning of the survey numbers of
suit lands would not advance the case of plaintiffs.
Whether 1935/1940 acquisition Notification culminated
into acquisition is also not forthcoming. It is possible to
assume that this acquisition Notification resulted into
such a culmination would not come to the rescue of
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respondents in view of the 1929 Forest Notification,
more particularly because of the observations made in
GANAPATHI SINGH supra and in NARINDER SINGH too
i.e., 'once the forest, always forest'. Much deliberation
beyond this in this regard is not required.
(l) The last submission of learned counsel appearing for
the respondent-plaintiffs that there is abundant material
to sustain the finding as to the plaintiffs being the
descendants of Sri.Mayaga, does not merit deeper
consideration, in view of our specific finding that the suit
lands are comprised in the State Reserve Forest under
the 1929 statutory Notification, regardless of 1935/1940
acquisition Notification. It is also true that the impugned
judgement & decree do not satisfactorily treat
contentions of the parties in this regard, despite the
battle lines being drawn up by virtue of their pleadings.
(m) There is yet another aspect that arises because of
the Survey Report dated 23.07.2021 which specifically
states that the KSRTC Bus Stand and its allied units do
exist in the area not comprised in the suit lands,
although a small portion thereof partly protrudes in one
of the suit lands. We appreciate the fairness of learned
counsel appearing for the respondent-plaintiffs in
submitting on instructions that his clients are fully in
agreement with the Survey Report and that they have
no objection whatsoever to the same. He has also added
that his clients have absolutely no grievance whatsoever
for the continued existence of the KSRTC Bus Stand and
its allied units/activities.
In the above circumstances, this appeal succeeds; the
impugned judgment & decree of the court below are set
at naught; the suit of respondents in O.S.No.476/2010
is dismissed, however, costs having been made easy in
peculiar circumstances.
A direction issues for the updation/correction of entries
in all the official records concerning the subject lands
and to show the same as being part of Chamundibetta
State Reserve Forest. Compliance Report should be filed
with the Registrar General of this Court within three
months and delay in compliance would be viewed
contemptuously.
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22.29. The only document which the Petitioners have
relied upon is the Ketwar Register to indicate
the above transaction, viz., the grant in favour
of Shri. Manik Raj on 17.11.1932 by Darkast
No. 807/32-33. He submits that the Darkast
register and the issue register have been
produced, which do not indicate any such grant
in favour of Shri Manik Raj. The only mention
which has been found is in the Kethwar
register, which is suspicious. If at all there was
a grant made, the same would have been
reflected in the issue register and the Darkast
register. No such entry being found therein,
and there being no other document to support
such a grant, reliance cannot solely be placed
on the Kethwar register. He submits that
despite a search being conducted by the
authorities, there are no documents which were
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found or available indicating the auction said to
have taken place in the year 1936, except for
two documents which have been placed by the
Petitioners . Compliance with the requirements
of Mysore Land Revenue Code, 1888, have not
been placed on record, and as such, this
alleged auction not having occurred can also
not be considered by this Court. This, again
being a disputed question of fact, cannot be
ascertained in a writ petition.
22.30. His submission is that a mere sale certificate
maintained in the office of the Sub Registrar
cannot confer any title on the petitioners'
vendor, and thereafter the petitioners, when
the original revenue records do not disclose the
grant or the auction proceedings on account of
the alleged default of the grantee. The
petitioners are deemed to be fully aware of the
Notification dated 8.01.1921. The petitioners,
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having purchased the property in the year
1977, being the subsequent purchasers, cannot
claim any right, title or interest superior to their
predecessors. In this regard, he relies upon the
decision of the Hon'ble Madras High Court in B.
Nagaraj vs State of Tamil Nadu10, more
particularly para nos. 7 and 8 thereof, which
are reproduced hereunder for easy reference:
7. In that regard, the judgment of the Apex Court in the
case of Meera Sahni Vs. Lt.Governor of Delhi (reported
in 2008 (9) SCC 177), is also relevant, wherein it was
held that a person entering to the sale or any injunction
of the land under acquisition after issuance of the
Notification under Section 4(1) of the Act of 1894, has
no right to challenge the acquisition proceedings or seek
lapse of the proceedings. The relevant paragraphs of the
said judgment, are quoted hereunder for ready
reference: "17. When a piece of land is sought to be
acquired, a notification under Section 4 of Land
Acquisition Act is required to be issued by the State
Government strictly in accordance with law. The said
notification is also required to be followed by a
declaration to be made under Section 6 of the Land
Acquisition Act and with the issuance of such a
notification any encumbrance created by the owner, or
any transfer made after the issuance of such a
notification would be deemed to be void and would not
be binding on the government. A number of decisions of
this Court have recognized the aforesaid proposition of
law wherein it was held that subsequent purchaser
cannot challenge acquisition proceedings and also the
validity of the notification or the irregularity in taking
10
WA No.1204/2022
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possession of the land after the declaration under
Section 6 of the Act. 18. In U.P.Jal Nigam Vs. Kalra
Properties (P) Ltd. (1996 (3) SCC 124), it was stated by
this Court that (SCC p.126, para 3): "3. ...Having regard
to the facts of this case, we were not inclined to further
adjourn the case nor to remit the case for fresh
consideration by the High Court. It is well settled law
that after the notification under Section 4(1) is
published in the Gazette any encumbrance created by
the owner does not bind the Government and the
purchaser does not acquire any title to the property."
19. In Sneh Prabha Vs. State of U.P. (1996 (7) SCC
426), it is stated as under (SCC p.430, para 5): "5. ...It
is settled law that any person who purchases land after
publication of the notification under Section 4(1), does
so at his/her own peril. The object of publication of the
notification under Section 4(1) is notice toeveryone that
the land is needed or is likely to be needed for public
purpose and the acquisition proceedings point out and
an implement to anyone to encumber the land acquired
thereunder. It authorizes the designated officer to enter
upon the land to do preliminaries etc. Therefore, any
alienation of the land after the publication of the
notification under Section 4(1) does not bind the
government or the beneficiary under the acquisition. On
taking possession of the land, all rights, title and
interests in land stand vested in the State, under
Section 16 of the Act, free from all encumbrances and
thereby absolute title in the land is acquired
thereunder."
8. In the light of the ratio propounded by the Apex
Court on the issue, so far as the writ petitioners are
concerned, they have no right to challenge the Award
issued in the year 1994, on the ground that it was after
two years of the Declaration under Section 6 of the Act
of 1894, having purchased the land much subsequent to
the Notification issued under Section 4(1) of the Act of
1894.
22.31. He therefore submits that the statutory
proceedings which have been initiated under
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Section 64A of the KFA 1963 are proper and
correct proceedings, the Petitioners would be
entitled to place on record all the documents in
support of their claim which would be
considered by the respondent officials. These
proceedings have been initiated in pursuance of
a survey carried out as per the boundaries to
the notification of 08.1.1921. He relies upon the
Order of remand in State of Karnataka and
Anr vs M.A. Mohamad Sanaulla and Anr.11
by the Hon'ble Apex Court, more particularly
para no. 18 thereof which is reproduced
hereunder for easy reference:
18. The document dated 14.08.1979 clearly reflected
that Survey No. 67 (old) had been renumbered in
resurvey as Survey No. 69 (new). It is not in issue
that in 1921 notification under the Forest Regulation
Survey No. 67 was covered. Subsequently in the
resurvey, its number is changed to 69. It would
automatically be understood that Survey No. 69
(new) was notified as Forest Land way back in 1921.
This aspect of the matter of whatever worth it may
be has been left out for consideration by the courts
below.
11
CA 5801/2022
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22.32. By relying on the above he submits that even
the Hon'ble Apex Court has accepted that there
is no dispute as regards Sy.No.67 being
renumbered as Sy.No.69, Sy.No.66 being
renumbered as Sy.No.68 which were notified on
8.1.1921 and submits that any orders that may
be passed would have to be inconformity with
the finding of the Hon'ble Apex Court.
22.33. His submission is also that the boundaries
prevail over the survey number, the boundaries
being clearly demarcated in the notification
dated 08.1.1921; the change in survey number
cannot be taken advantage of by the Petitioners
to usurp forest land. A survey having been
carried out, the Petitioners not having
participated in the same and having refused to
sign the mahazar cannot now seek to take
advantage of those fact situations.
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22.34. In this regard he relies upon the decision in
Narasimha Shastry vs Mangesha Devaru12,
more particularly para No. 6 thereof which is
reproduced hereunder for easy reference:
6. As early as in the year 1948, the Privy Council in
the case of B.K.A.P. Co-operative
Society v. Government of Palestine [1948 PC 207.]
observed as follows:--
"In construing a grant of land a description by
fixed boundaries is to be preferred to a conflicting
description by area. The statement as to area is to be
rejected as falsa demonstratio."
Same view was taken referring to this decision by
the High Court of Madras in the case
of Siviseshamuthu v. Balakrishna [AIR 1963 Madras
147.] and it was reproduced by the trial Court in its
judgment as-
"Where the property sold is part of a definite
survey number and in the sale deed the exact
boundaries of the part sold are given and the area
mentioned is only approximate, the description by
boundaries should prevail in ascertaining the actual
property sold under the document."
Nagpur High Court in the case of T. Rajlu
Naidu v. M.E.R. Malar [AIR 1930 Nagpur 197.] also
took the same view that-
"In the case of a discrepancy the dimensions and
boundaries and the area specified within the
boundaries will pass whether it be less or more than
the quantity specified."
12
1987 SCC Online Kar. 278
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Keeping in view this well established proposition
and principle in the matter of construction of a
document or instrument, the Court has to find out
what exactly was the property sold under the sale
deed relied upon by the plaintiff.
22.35. By relying on Narasimha Shastry's case he
submits that the boundaries would prevail over
measurements and as such, the boundaries as
per the notification would prevail over both
measurements as also the identity of properties
by way of survey number.
22.36. He relies upon the decision in Sheodhyan
Singh and Ors. Vs Musammat Sanichara
Kuer & Ors13, more particularly para nos. 6
and 7 thereof, which are reproduced hereunder
for easy reference:
6. In the present appeal, the learned counsel for the
respondents does not ask us to go beyond the sale
certificate and the final decree for sale; his
contention is that there is a mere misdescription of
the plot number in the two documents and that the
identity of the plot sold is clear from the
circumstances which we have already set out above.
He relies on Thakur Barmha v. Jiban Ram
Marwari [(1913) LR 41 IA 38] . In that case what had
13
1961 SCC Online SC 164
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happened was that the judgment-debtor owned a
mahal in which ten annas share was mortgaged while
the remainder was free from encumbrances. A
creditor of his attached and put up for sale six annas
share out of the mortgaged share. The property
attached was sold. When the auction purchasers
applied for the sale certificate they alleged that a
mistake had been made in the schedule of the
property to be sold in that the word "not" had been
omitted from the description of the six annas share
and that the property should have been described as
being six annas not mortgaged. This prayer of theirs
was allowed by the executing court and the appeal to
the High Court failed. On appeal to the Privy Council,
it was held that in a judicial sale only the property
attached can be sold and that property is conclusively
described in and by the schedule to which the
attachment refers, namely, the six annas share
subject to an existing mortgage. The Privy Council
therefore allowed the appeal and observed that a
case of misdescription could be treated as a mere
irregularity; but the case before them was a case of
identity and not of misdescription. It was pointed out
that a property fully identified in the schedule may be
in some respects misdescribed, which would be a
different case. Thus the effect of this decision is that
where there is no doubt as to the identity and there
is only misdescription that could be treated as a mere
irregularity. Another case on which reliance has been
placed on behalf of the respondents is Gossain Das
Kundu v. Mrittunjoy Agnan Sardar [(1913) 18 CLJ
541] . In that case the land sold was described by
boundaries and area; but the area seems to have
been incorrect. It was held to be a case of
misdescription of the area and the boundaries were
held to prevail.
7. We are of opinion that the present case is
analogous to a case of misdescription. As already
pointed out the area, the khata number and the
boundaries all refer to Plot No. 1060 and what has
happened is that in writing the plot number, one zero
has been missed and 1060 has become 160. It is also
important to remember that there is no plot bearing
No. 160 in Khata No. 97. In these circumstances we
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are of opinion that the High Court was right in
holding that this is a case of misdescription only and
that the identity of the property sold is well
established, namely, that it is Plot No. 1060. The
matter may have been different if no boundaries had
been given in the final decree for sale as well as in
the sale certificate and only the plot number was
mentioned. But where we have both the boundaries
and the plot number and the circumstances are as in
this case, the mistake in the plot number must be
treated as a mere misdescription which does not
affect the identity of the property sold. The
contention of the appellants therefore with respect to
this plot must fail.
22.37. By relying on Sheodhyan Singh's case, he
submits that when the boundaries have been
clearly identified even if there is mistake in the
survey number, the same would have to be
ignored, thus he submits that the confusion
sought to be created by the petitioners even as
regards survey numbers even after they are re-
numbered is to be ignored by this Court and
what is required to be considered is the
boundary as per the notification published in
the gazette.
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22.38. He relies upon the decision in Y. Subbarao vs
Azizunnisa Begum14, more particularly para
nos. 41 and 42 thereof, which are reproduced
hereunder for easy reference:
41. The law is well settled that if a property is
described by distinct boundaries which can be
identified, any mistake in the survey number of the
land has to be ignored. The maximum 'falsa
demonstration non-nocet' has been applied in such a
situation.
42. Even if the property is known by a definite name
as happens when a particular land has a local name
or where the particular building has a particular
name, the identity of the property can be
established.
22.39. He relies upon a judgment of this Court in
KSRTC vs Mallaiah15, more particularly para
No. 7C thereof, which is reproduced hereunder
for easy reference:
7(c) The Appellant-State Government has produced in
this appeal the Mysore Government Notification dated
6.6.1929 issued u/s 17 of the 1900 Act whereby
Chamundibetta State Reserve Forest has been
constituted. Maharajas of Mysore Kingdom were
known for their love for Mother Nature in general and
forests in particular. They used to worship forests as
Vanadevata (Goddess of Forest). The Forest Map has
also been produced by the learned HCGP with leave
of the court. These are not only not disputed by the
14
1983 SCC Online AP 73
15
RFA 1653/2011
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plaintiffs side but their learned counsel seeks to rely
upon them also to show that the suit lands have not
been comprised in the said forest. True it is that the
survey numbers in which the suit lands are situate
are not in so many words found in the subject
Notification or the Forest Map. However, when a
State Reserve Forest is sought to be constituted by
Notifications of the kind, the land comprised therein
is demarked by the boundary lines. If suit lands
obviously fall within the said boundary lines, non-
mentioning of the survey numbers pale into
insignificance. After all, it has been a settled position
since the days of Privy Council that as between
numbers denoting the area and the boundaries, the
latter shall prevail over the former, should there be
discordance.
22.40. By relying on all of the above case laws, he
submits that the boundaries would prevail over
measurement and or identity of the survey
number. The extent of land in occupation of the
Petitioners coming within the boundaries of the
notification dated 08.01.1921, the same
amounts to forest land as regards which the
State can take necessary action.
22.41. He relies upon the decision of the Hon'ble Apex
Court in T.N. Godavarman Thirumulpad
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(57) vs Union of India and Ors.16 more
particularly para no. 19 thereof, which is
reproduced hereunder for easy reference:
19. From the aforesaid, it is quite clear that all
encroachers into the Tatokola Forest have to be
evicted. It is no doubt true that according to Section
64-A a show-cause notice has to be issued. But that
can only be with a view to enable the person to
whom notice is issued to show that his land does
not fall within the boundaries of the forest as drawn
up by the Survey of India. If the land is identified as
falling within the Survey of India boundary then
there could be no other defence open to the person
concerned and the State would be under an
obligation and duty to evict the encroacher, by force
if necessary.
22.42. By relying on Godavarman's case he submits
that the scope of an enquiry under 64A has
been dealt with by the Hon'ble Apex Court and
the Hon'ble Apex Court has categorically held
that the only defence available to encroachers
is to show that it does not fall within the
boundary of the forest notification. Thus, he
submits that a survey having been carried out,
requirements laid down by Godavarman's
case being satisfied, this Court ought not to
16
2008 16 SCC 337
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intervene with the impugned notice at this
stage.
22.43. As regards the judgment passed in RA
No.10/1986 he submits that in a matter
relating to a reserved forest a Civil Court would
not have jurisdiction and in this regard he relies
upon the decision in State of Chhattisgarh
and Anr. vs Chandra Bhan Singh and
Anr.17, more particularly para nos. 7, 12, 15
and 19 thereof, which are reproduced
hereunder for easy reference:
7. It is this judgement and decree dated 25.11.2004
which has been challenged by the
appellants/defendants No. 1 & 2 by way of instant
second appeal which was admitted by this Court on
the following substantial questions of law : -"Whether
after issuance of notification deciding to constitute
any land, a reserve forest, and appointing a Forest
Settlement Officer to inquire into and determine the
existence, nature and extent of any right, alleged to
exist in favour of any person, in or over any land
comprised within such limits etc., the jurisdiction of
Civil Court is barred?"
12. As regards the contention of learned senior
counsel for the respondents/plaintiffs that the
notification shown by the State Government would
17
2013 SCC Online CHH 170
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not be applicable in the case of the plaintiffs for the
reason that it does not disclose the Khasra No. of the
suit land of the plaintiffs, it is submitted that an
explanation, given under Section 4(1) of the Forest
Act, specifically holds that for the purpose of
specifying the situation and limits of the land to be
declared as forest land it is sufficient to describe the
limits of the forest by roads, rivers and other readily
intelligible boundaries. For convenience sake, the
explanation of Section 4(1) of the Forest Act is
reproduced below : -
"Explanation.- For the purpose of clause (b), it shall
be sufficient to describe the limits of the forest by
roads, rivers, ridges or other well-known or readily
intelligible boundaries."
15. Dealing with the issue of whether the jurisdiction
of the Civil Court was barred or not, if we see the
decision of Hon'ble Supreme Court in the case
of Rajasthan State Road Transport Corporation v. Bal
Mukund Bairwa, reported in (2009) 4 SCC 299, the
Supreme Court has categorically held that if a statute
while creating rights and obligations does not
constitute a forum for enforcing the same, the
plenary jurisdiction of civil court cannot be held to
have been taken away. That is to say in the event if
there is a forum for enforcing the provisions of law in
the special statute created for the specific purpose
then in that case by implication the jurisdiction of the
civil court would be taken away. The decision of the
Supreme Court in the said case was on the basis of
the principles laid down in the case of Rajasthan
State Road Transport Corporation v. Krishna Kant,
reported in AIR 1995 SC 1715, where the Hon'ble
Supreme Court has held that power of a civil court
would be only in a case where there is no other
alternative remedy available for a person for the
recognition, observance and enforcement of his right.
In such case, the recourse of the civil court would be
open. However, in the same judgement, the Hon'ble
Supreme Court in categorical terms held that where
there is an alternate remedy under an Act created,
then only the remedy is to approach the forum
created by the said Act.
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19. Thus, from the plain reading to the settled
position of law, it is evidently clear that where under
the provisions of law or in a statute, the legislature
has created a hierarchy of authority and also the
provisions of challenging these orders of the
authorities by way of appeal for the determination of
the issues is sufficient for enforcing that the
jurisdiction of the civil court to try the same is barred
as has been decided by the Hon'ble Supreme Court in
the case of Desika Charyulu v. State of Andhra
Pradesh, reported in AIR 1964 SC 807. That being so,
the trial Court has erred in law in deciding the issue
that it has the jurisdiction in entertaining Civil Suit
No. 193-A/2002 and passing the judgement and
decree dated 30.12.2003 which has also been
affirmed and confirmed by the first appellate Court
vide its judgement and decree dated 25.11.2004
passed in Civil Appeal No. 1-A/2004. Needless to say,
if the law permits the respondents/plaintiffs may
approach the competent authority under the
provisions of law.
22.44. By relying on Chandra Bhan Singh's case, he
submits that it is the limits of the forest by way
of intelligible boundaries which should have to
be considered to determine if any particular
land is part of a forest land or not. The mere
description or identification by a number would
not be sufficient. What is required to be
considered is the boundaries in the notification
reserving the land for forest.
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22.45. He relies upon the decision in Girish H.E. and
Ors. vs State of Karnataka and Ors.18, more
particularly para no. 10 thereof, which is
reproduced hereunder for easy reference:
10. The notification issued under Section 4 of the Act
may be termed as a Preliminary Notification. The
same has to be published by the Forest Settlement
Officer under Section 5 as a proclamation and also a
copy of the notice has to be served on every known
owner or occupier of any land included in or adjoining
the land proposed to be constituted a reserved forest
or on his recognized agent or manager. On the
issuance of a notification under Section 4, no right
can be acquired in or over the land comprised in the
notification, except by succession or under a grant or
contract in writing made or entered into by or on
behalf of the Government. Also no Civil Court can
entertain any suit for the establishment of any right
on any land included in the notification issued under
Section 4.
22.46. By relying on Girish H.E.'s case, he submits
that on a notification issued under Section 4 of
the Act, no right can be acquired in or over the
land comprised in the notification except by
succession or under grant or contract in writing
or entered into by or on behalf of the
government. The notification having been
18
2013 SCC Online Kar 10537
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issued in this case, much prior to the so-called
grant in favour of the defence personnel [Manik
Raj], the defence personnel would not get any
right over the property, since no grant or sale
has been made in his favor by or on behalf of
the government.
22.47. He relies upon the decision in Commissioner,
BDA vs Brijesh Reddy and Anr.19, more
particularly para nos. 14 to 18 thereof, which
are reproduced hereunder for easy reference:
14. Section 9 of the Code of Civil Procedure, 1908
provides jurisdiction to try all suits of civil nature
excepting those that are expressly or impliedly
barred which reads as under:
"9.Courts to try all civil suits unless barred.--The
courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is
either expressly or impliedly barred."
From the above provision, it is clear that courts have
jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or
impliedly barred. The jurisdiction of civil court with
regard to a particular matter can be said to be
excluded if there is an express provision or by
implication it can be inferred that the jurisdiction is
19
2013 3 SCC 66
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taken away. An objection as to the exclusion of civil
court's jurisdiction for availability of alternative forum
should be taken before the trial court and at the
earliest failing which the higher court may refuse to
entertain the plea in the absence of proof of
prejudice.
15. In State of Bihar v. Dhirendra Kumar [(1995) 4 SCC
229] the core question was whether a civil suit is
maintainable and ad interim injunction could be
issued where proceedings under the Land Acquisition
Act, 1894 was taken pursuant to the notice issued
under Section 9 of the Act and possession delivered
to the beneficiary. On going through the entire
proceedings initiated under the Land Acquisition Act,
this Court held as under: (SCC p. 230, para 3)
"3. ... We are, therefore, inclined to think, as presently
advised, that by necessary implication the power of
the civil court to take cognizance of the case under
Section 9 CPC stands excluded, and a civil court has
no jurisdiction to go into the question of the validity
or legality of the notification under Section 4 and
declaration under Section 6, except by the High Court
in a proceeding under Article 226 of the Constitution.
So, the civil suit itself was not maintainable."
After holding so, this Court set aside the finding of
the trial court that there is a prima facie triable issue.
It also held that the order of injunction was without
jurisdiction.
16. In Laxmi Chand v. Gram Panchayat,
Kararia [(1996) 7 SCC 218] while considering Section
9 of the Civil Procedure Code, 1908 vis-à-vis the
Land Acquisition Act, 1894, this Court held as under:
(SCC p. 220, paras 2-3)
"2. ... It is seen that Section 9 of the Civil
Procedure Code, 1908 gives jurisdiction to the
civil court to try all civil suits, unless barred. The
cognizance of a suit of civil nature may either
expressly or impliedly be barred. The procedure
contemplated under the Act is a special
procedure envisaged to effectuate public
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purpose, compulsorily acquiring the land for use
of public purpose. The notification under Section
4 and declaration under Section 6 of the Act are
required to be published in the manner
contemplated thereunder. The inference gives
conclusiveness to the public purpose and the
extent of the land mentioned therein. The award
should be made under Section 11 as envisaged
thereunder. The dissatisfied claimant is provided
with the remedy of reference under Section 18
and a further appeal under Section 54 of the
Act. If the Government intends to withdraw from
the acquisition before taking possession of the
land, procedure contemplated under Section 48
requires to be adhered to. If possession is
taken, it stands vested under Section 16 in the
State with absolute title free from all
encumbrances and the Government has no
power to withdraw from acquisition.
3. It would thus be clear that the scheme of the Act
is complete in itself and thereby the jurisdiction of
the civil court to take cognizance of the cases
arising under the Act, by necessary implication,
stood barred. The civil court thereby is devoid of
jurisdiction to give declaration on the invalidity of
the procedure contemplated under the Act. The
only right an aggrieved person has is to approach
the constitutional courts viz. the High Court and
the Supreme Court under their plenary power
under Articles 226 and 136 respectively with self-
imposed restrictions on their exercise of
extraordinary power. Barring thereof, there is no
power to the civil court."
17. In Bangalore Development Authority v. K.S.
Narayan [(2006) 8 SCC 336] , which arose under
the Bangalore Development Authority Act, 1976 and
which was similar to the case on hand, this Court
held that a civil suit is not maintainable to challenge
the acquisition proceedings. In that case one
"K.S. Narayan filed Original Suit No. 5371 of 1989
in the Court of the City Civil Judge, Bangalore,
praying that a decree for permanent injunction be
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passed against the defendant Bangalore
Development Authority, their agents and servants
restraining them from interfering with the
plaintiff's possession and enjoyment of the plaint
scheduled property and from demolishing any
structure situate thereon. The case of the plaintiff
was that the plaintiff purchased the property in
dispute bearing No. 46, situated in Banasawadi
Village, K.R. Pura Hobli, Bangalore, South Taluk
from S. Narayana Gowda by means of a
registered sale deed dated 17-6-1985. The
erstwhile owners of the property had obtained
conversion certificate from the Tahsildar and the
property is situated in a layout which is properly
approved by obtaining conversion for non-
agricultural use from the competent authority.
The plaintiff applied for mutation entries and the
same was granted in his favour. The property in
dispute was not covered by any acquisition
proceedings as neither notice of acquisition had
been received nor any award regarding the said
property had been passed. The defendant had no
right, title or interest over the property but it was
trying to dispossess the plaintiff from the same on
the ground of alleged acquisition. The plaintiff
issued a notice to the defendant on 11-7-1989
calling upon it not to interfere with his possession
and enjoyment of the property in dispute....
3. The suit was contested by the defendant Bangalore
Development Authority on the ground inter alia that
the plaintiff was not the owner of the property in
dispute. S. Narayana Gowda, who is alleged to have
executed the sale deed in favour of the plaintiff on
17-6-1985, had no right, title or interest over the
property in dispute and he could not have conveyed
any title to the plaintiff. It was further pleaded that
the disputed land had been acquired by the
Bangalore Development Authority after issuing
preliminary and final notifications in accordance
with the Bangalore Development Authority Act and
the possession had also been taken over and
thereafter it was handed over to the engineering
section on 22-6-1988 after completion of all
formalities. The award for the land acquired had
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already been made and the compensation amount
had been deposited in the civil court under Sections
30 and 31(2) of the Land Acquisition Act. It was
specifically pleaded that it was the defendant
Bangalore Development Authority which was in
possession of the plaint scheduled property on the
date of filing of the suit and, therefore, the suit for
injunction filed by the plaintiff was not maintainable
and was liable to be dismissed." (SCC pp. 337-38,
paras 2-3)
It is relevant to note that in the above decision in K.S.
Narayan case [(2006) 8 SCC 336] , the acquisition
proceedings in question had been taken under the
Bangalore Development Authority Act, 1976 and the
provisions of Sections 17 and 19 are somewhat
similar to the provisions of Sections 4 and 6 of the
Land Acquisition Act, 1894. After noting out all the
details, this Court allowed the appeals and set aside
the decision rendered by the High Court.
18. It is clear that the Land Acquisition Act is a
complete code in itself and is meant to serve public
purpose. By necessary implication, the power of the
civil court to take cognizance of the case under
Section 9 CPC stands excluded and a civil court has
no jurisdiction to go into the question of the validity
or legality of the notification under Section 4,
declaration under Section 6 and subsequent
proceedings except by the High Court in a proceeding
under Article 226 of the Constitution. It is thus clear
that the civil court is devoid of jurisdiction to give
declaration or even bare injunction being granted on
the invalidity of the procedure contemplated under
the Act. The only right available for the aggrieved
person is to approach the High Court under Article
226 and this Court under Article 136 with self-
imposed restrictions on their exercise of
extraordinary power.
22.48. He relies upon a decision of this Court in State
of Karnatraka and ors. vs Mohd.
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Fayazoddin and ors.20, more particularly para
No. 22 thereof, which is reproduced hereunder
for easy reference:
22. In the instant case, the Courts below have fell
in error in holding and declaring that the plaintiff is
the owner in possession of the suit land, when once
after the declaration of the land as forest land under
Section 4 and Section 17 of the Forest Act, there is
total bar on the Civil Court to entertain the suit to
establish any right as envisaged under Section 6(3)
of the Forest Act and the suit land after declaring as
a Reserve forest as per Ex.D14, suit is not
maintainable. Once the land is acquired and
mandatory requirements are complied including the
possession over the suit land, which vest with the
Government, when documents at Ex.D1 to Ex.D4(a)
evidence compensation is paid, the plaintiff having
failed in his attempt in LAC No.74/1980 to seek
enhanced compensation, the suit of the plaintiff is
not maintainable as envisaged under Section 6(3) of
the Forest Act. The Courts below have committed
serious error in decreeing the suit, there is
perversity and illegality in the judgment and decree
of the Courts below warranting interference by this
Court and the substantial question of law is
answered in favour of the appellant and for the
foregoing reasons, this Court pass the following:
ORDER
I. The Regular Second Appeal is allowed.
II. The judgment and decree of the Courts below are
hereby set aside and the suit of the plaintiff is
dismissed.
20
RSA No.200390/2014
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22.49. By relying on Mohd. Fayazoddin’s case, he
submits that the Civil Court would not have
jurisdiction to pass any order of declaration or
injunction when notice has been issued under
Section 4 and 17 of the Forest Act, there would
be total bar on the Civil Court to entertain the
suit to establish any right as envisaged under
subsection (3) of Section 6 of the Forest Act.
Thus, he once again reiterates that irrespective
of the petitioner itself having filed the suit, the
said suit could not be considered by the Civil
Court and orders passed as regards land which
is forest land coming within the purview of the
22.50. On all the above grounds, he submits that the
writ petition is required to be dismissed with a
direction to the petitioners to submit a reply
which would be considered by the Respondents
in accordance with law.
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23. In reply, Sri. Chandan, learned counsel for
petitioners submits that,
23.1. The judgment in Kunishetty Satyanayana’s
case would not be applicable to the present
facts. In that case, a show cause notice had
been issued in respect of securing employment
on the basis of a forged caste certificate. In the
present case, the issue is pertaining to the title
of the land. The Respondent-Forest department
itself had initiated civil proceedings which came
to be dismissed and now a show cause notice
has been issued after more than 80 years. By
relying on para No.16 in Kunishetty
Satyanarayana’s case, he submits that in
exceptional cases the Hon’ble Apex Court has
held that the High Court can quash charge
sheet or show cause notice if it is found without
jurisdiction or for some other reason if it is
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wholly illegal. The said para 16 in Kunishetty
Satyanarayana’s21 case is reproduced
hereunder for easy reference:
16. No doubt, in some very rare and exceptional
cases the High Court can quash a charge-sheet or
show-cause notice if it is found to be wholly without
jurisdiction or for some other reason if it is wholly
illegal. However, ordinarily the High Court should
not interfere in such a matter.
23.2. He submits that Kunishetty Satyanarayana’s
case was also distinguished by the Hon’ble High
Court of Madras in S. Sridharan vs Engineer
in Chief (WRO) and Chief Engineer
(General), PWD22, more particularly para nos.
19 and 20 thereof, which are reproduced
hereunder for easy reference:
19. The decision relied on by the learned Government
Advocate in Union of India and Anr. v. Kunisetty
Satyanarayana is not applicable to the question
involved in this matter. In the said decision, the
Honourable Apex Court has considered about the
merits and legality of issuing a show cause notice or
charge sheet and the question of delay in issuing the
charge memo was not at all considered in the said
decision. On the other hand, the Honourable Apex
Court has specifically held even in that decision as
here under:
21
2006 12 SCC 28
22
Manu/TN/1088/2009
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Writ jurisdiction is discretionary jurisdiction and hence
such discretion under Article 226 should not ordinarily
be exercised by quashing a show cause notice or
charge sheet. Albeit, in some very rare and
exceptional cases the High Court can quash a charge
sheet or show cause notice if it is found to be wholly
without jurisdiction or for some other reason if it is
wholly illegal.
20. As far as the case on hand is concerned, it is to be
reiterated that there is an inordinate and unexplained
delay of six years in issuing the first charge memo as
the incident took place during the year 1984 and the
first charge memo was issued in the year 1990 and
the said charge memo was ultimately cancelled
without any enquiry by order dated 20.04.2004
without indicating any contemplation of issuing fresh
charge memo against the petitioner. The impugned
second charge memo was issued two months
thereafter, i.e., on 30.06.2004 and as such the second
charge memo was issued against the petitioner nearly
20 years after the alleged incident causing grave
prejudice to the petitioner resulting miscarriage of
justice and such action of the first respondent is no
doubt wholly illegal and unjustified warranting
interference of this Court to quash the impugned
charge memo.
For the foregoing reasons, this Court has no hesitation
to come to an irresistible conclusion to the effect that
the inordinate and unexplained delay in issuing the
impugned charge memo would vitiate the disciplinary
proceedings and the charge memo dated 30.06.2004
issued by the respondent herein in his proceedings in
Charge Memo No. CII(2)/17421/90-45 is liable to be
quashed and accordingly quashed and the Writ Petition
is allowed. Consequently, the connected Miscellaneous
Petitions are closed. There is no order as to costs.
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23.3. He submits by relying on S.Sridharan‘s case
that this Court could exercise jurisdiction when
there is a gross delay in the initiation of the
proceedings. As regards the contention that the
proceedings before the Civil Court are without
jurisdiction and the findings of the Civil Court
are not required to be looked into, he submits
that the said proceedings had not been initiated
by the Petitioners but were initiated by the
Respondents, the Respondents after having
initiated civil proceedings cannot now contend
otherwise, in fact in the first proceedings filed
by Contending that there is interference with
his possession by the Forest Department,
Petitioner No. 2-Mohammad Sanaullah, had
filed a suit in O.S. No. 600/1981 seeking a
permanent injunction against the Forest
Department, restraining the Forest Department
from interfering with the peaceful possession of
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Petitioner No.2 in Survey No. 69/2. The said
suit came to be dismissed on 13.12.1985 with
costs.
23.4. One of the petitioners at the second appeal
stage filed by the Forest department and the
suit having been dismissed, the first appeal
having been allowed, in the second appeal filed
by the Forest department, the Forest
department withdrew the appeal on the ground
that it had filed the said suit. The State, having
competent persons to advise them, having
acted on such advice and filed civil suits, cannot
now contend that the civil suit is not
maintainable and the findings given in the civil
suit are not binding.
23.5. As regards the contention that boundaries
prevail over the measurement, his submission
is that in the joint survey, it has been clearly
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and categorically indicated that there is no
encroachment by the Petitioners in Sy. nos.68
and 69, another unilateral survey got carried
out by the forest department which will not
enure to their benefit and as such, once there is
no encroachment, the issue of whether the
boundaries prevail over the measurement or
measurement prevail over boundaries or
whether there is a dispute as regards identity of
the property itself is not something which will
be required to be considered.
23.6. As regards the contention that there is a
fundamental duty on the Government to
preserve forest land, he submits that such duty
is required to be exercised within a reasonable
period of time. The notification having been
issued on 08.01.1921, the grant having been
made in the year 1932, an auction having been
held in the year 1936 in respect of Sy.No.69,
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the grant in respect of Sy.No.68 having been
made in the year 1945, proceedings could have
been initiated in the year 2006-07 and once
again in the year 2021, that not being so, there
is a delay of more than 80 years and as such,
this Court ought to intervene and allow the
instant petition.
23.7. He differs from the contention of the learned
Additional Advocate General that once lands are
declared as reserved forests, entries in revenue
records in subsequent transactions are of no
consequence. He submits that the government
itself, having granted the said lands and
thereafter having auctioned the land, the
government cannot contend to the contrary;
the same would be a dishonest contention. In
this regard, he relies upon the decision of the
Hon’ble Apex Court in Anand Arya and Anr vs
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Union of India and Anr23, more particularly
para nos. 19, 20 and 21 thereof, which are
reproduced hereunder for easy reference:
19. Mr K.K. Venugopal, learned Senior Counsel
appearing for the State of U.P. strongly supported
the view taken by the CEC. The learned counsel
submitted that the omission to identify the trees at
the project site as forest or deemed forest was not
due to any mistake or by chance. He pointed out that
in the parameters set out by the State Level Expert
Committee for identification of forests or forest-like
areas it was clarified that “trees mean naturally
grown perennial trees” and it was further stipulated
that “the plantation done on public land or private
land will not be identified as forest-like area”. Mr
Venugopal submitted that the guidelines made by the
Expert Committee were reported to this Court and
accepted by it on 12-12-2007. The project site clearly
did not come within the parameters fixed by the
Expert Committee and it was rightly not identified as
a forest-like area. The parameters fixed by the Expert
Committee for identification of forests or forest-like
area were never challenged by anyone and now it
was too late in the day to question those parameters,
more so after those were accepted by this Court. Mr
Venugopal contended that the non-inclusion of the
project site as a forest or forest-like area by the
State Level Expert Committee should be conclusive of
the fact that the area was not forest land and the
trees standing there were no forest.
20. Mr Bhushan contended that a tract of land
bearing a thick cluster of trees that would qualify as
forest land and forest as defined by the orders of this
Court would not cease to be so simply because the
parameters adopted by the Expert Committee were
deficient and inconsistent with this Court’s orders. In
support of the submission that there was actually a
forest in that area that was cut down for the project23
2011 1 SCC 744
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he relied upon the report of the FSI dated 7-8-2009
in which the forest cover status at the project site
based on IRS 1D/P6 LI88 III data is shown as
follows:
Forest Cover Status in the Area of Interest (AOI) of
Noida from 2001 to 2007
Area in ha
Assessment Date of Very Moderately Open Total Non- Total
(State of satellite dense dense forest forest forest area
Forest data forest forest cover
Report) (sic)
8th (2001) Oct 0 3.74 10.42 14.16 32.27 46.43
2000
9th Nov 0 6.05 10.71 18.76 29.67 46.43
(2003) 2002
10th Nov 0 7.54 14.23 21.77 24.66 46.43
(2005)
2004
11th Oct 0 9.04 12.73 21.77 24.66 46.43
(2007) 2006
21. In the report it was also stated that the latest
forest cover assessment by the FSI was based on
satellite data of 2006 and it did not have any data of
the later period. It further stated that the felling of
trees might have taken place after October 2006. Mr
Bhushan invited our attention to the order of this
Court in T.N. Godavarman Thirumulpad (98) v. Union
of India [(2006) 5 SCC 28] (SCC paras 16, 18, 33,
37, 38) to show that this Court had accepted the
reliability of the FSI Report based on satellite
imagery.
23.8. By relying on Anand Arya’s case, he submits
that the Hon’ble Apex Court took into
consideration the revenue records and
considered the factum that the land had never
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been shown as forest and accepted the
contents of the revenue records.
23.9. He also relies upon the decision of the Hon’ble
Apex Court in Elizabeth Jacob vs District
Collector, Idukki and Ors.24, more
particularly para nos. 13 and 14 thereof, which
are reproduced hereunder for easy reference:
13. The records also showed that the Forest
Department planted some trees in the land in the
year 1992 after the property was attached and that
on 3-11-1994, the Tahsildar, Peermade wrote to the
Forest Department to vacate the land, as it had to be
sold by public auction. The Forest Department did not
initiate any action in regard to the land even
thereafter. On the other hand, the Revenue
Authorities asserted their possession and put up the
land for sale in 1998 under the provisions of the Act.
The appellant purchased the land in the auction-sale
and obtained a sale certificate, under which the land
vested in her free from encumbrances.
14. The Division Bench also noticed that the land had
been shown as “government poramboke” (that is
wasteland belonging to the Government) in the
revenue records at the relevant time and that the
notification under the Forest Act relied upon by the
respondents did not show that the land was forest
land. The Division Bench did not record any finding
that the land was a forest land, but on the other
hand, held that the State Government had not
produced any material to show that the land was
forest land or part of reserve forest. It also observed
that as the Revenue Authorities had proceeded on
24
2008 15 SCC 166
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the basis that Ansari and others had right over the
land and as the Revenue Authorities had sold the
land to the appellant in a revenue auction, the State
Government could not in the normal course turn
around and say that no rights were acquired by the
appellant as purchaser at the revenue auction.
23.10. By relying on Elizabath Jacob‘s case, he
submits that when a common man is led to
believe that lands have a good title and there
are no encumbrances whatsoever by way of an
action of the government itself, the rights of
such a common man are required to be
protected.
23.11. He also relies upon the decision of the Hon’ble
Apex Court in Godrej and Boyce
Manufacturing Company Ltd. vs State of
Maharashtra and Ors.25 more particularly
paras nos. 81 to 84 thereof, which are
reproduced hereunder for easy reference:
25
2014 3 SCC 430
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81. In Pratibha [Pratibha Coop. Housing Society
Ltd. v. State of Maharashtra, (1991) 3 SCC 341] the
eight unauthorised floors were constructed in clear
and flagrant violation and disregard of the FSI. The
demolition order had already attained finality in this
Court and thereafter six of the unauthorised floors
had been demolished and the seventh was partially
demolished. This Court found no justification to
interfere with the demolitions. Again, the issue of
compensation does not arise in such a situation.
82. The application of the principle laid down by this
Court, therefore, depends on the independent facts
found in a case. The remedy of demolition cannot be
applied per se with a broad brush to all cases. The
State also seems to have realised this and that is
perhaps the reason why it moved the application that
it did in Godavarman.
83. Looking at the issue from the point of view of the
citizen and not only from the point of view of the
State or a well-meaning pressure group, it does
appear that even though the basic principle is that
the buyer should beware and therefore if the
appellants and the purchasers of tenements or
commercial establishments from the appellants ought
to bear the consequences of unauthorised
construction, the well-settled principle of caveat
emptor would be applicable in normal circumstances
and not in extraordinary circumstances as these
appeals present, when a citizen is effectively led up
the garden path for several decades by the State
itself. The present appeals do not relate to a stray or
a few instances of unauthorised constructions and,
therefore, fall in a class of their own. In a case such
as the present, if a citizen cannot trust the State
which has given statutory permissions and provided
municipal facilities, whom should he or she trust?
84. Assuming the disputed land was a private forest,
the State remained completely inactive when
construction was going on over acres and acres of
land and of a very large number of buildings thereon
and for a few decades. The State permitted the
construction through the development plans and by
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granting exemption under the Urban Land (Ceiling
and Regulation) Act, 1976 and providing necessary
infrastructure such as roads and sanitation on the
disputed land and the surrounding area. When such a
large-scale activity involving the State is being
carried on over vast stretches of land exceeding a
hundred acres, it is natural for a reasonable citizen to
assume that whatever actions are being taken are in
accordance with law otherwise the State would
certainly step in to prevent such a massive and
prolonged breach of the law. The silence of the State
in all the appeals before us led the appellants and a
large number of citizens to believe that there was no
patent illegality in the constructions on the disputed
land nor was there any legal risk in investing on the
disputed land. Under these circumstances, for the
State or Bombay Environment Action Group to
contend that only the citizen must bear the
consequences of the unauthorised construction may
not be appropriate. It is the complete inaction of the
State, rather its active consent that has resulted in
several citizens being placed in a precarious position
where they are now told that their investment is
actually in unauthorised constructions which are
liable to be demolished any time even after several
decades. There is no reason why these citizens
should be the only victims of such a fate and the
State be held not responsible for this state of affairs;
nor is there any reason why under such
circumstances this Court should not come to the aid
of victims of the culpable failure of the State to
implement and enforce the law for several decades.
23.12. By relying on Godrej and Boyce‘s case he
submits that citizens having acted for several
decades on the basis of what has been held out
by the State, the State cannot belatedly take
action to the contrary thereto.
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23.13. He relies upon the decision of the Hon’ble Apex
Court in Chandavarkar Sita Ratna Rao vs
Ashalata S. Guram26, more particularly para
nos. 16 to 21 thereof, which are reproduced
hereunder for easy reference:
16. This appeal challenges the said judgment and
order. As mentioned hereinbefore two questions
require consideration — how far and to what extent
in exercise of its jurisdiction under Article 226 or 227
of the Constitution and in this respect regarding
power to deal with factual findings, the jurisdiction of
the High Court is akin both under Articles 226 and
227 of the Constitution, can the High Court interfere
with the findings of fact? It is well settled that the
High Court can set aside or ignore the findings of fact
of an appropriate court if there was no evidence to
justify such a conclusion and if no reasonable person
could possibly have come to the conclusion which the
courts below have come or in other words a finding
which was perverse in law. This principle is well
settled. In D.N. Banerji v. P.R. Mukherjee [(1952) 2
SCC 619 : AIR 1953 SC 58 : 1953 SCR 302, 305] it
was laid down by this Court that unless there was
any grave miscarriage of justice or flagrant violation
of law calling for intervention it was not for the High
Court under Articles 226 and 227 of the Constitution
to interfere. If there is evidence on record on which a
finding can be arrived at and if the court has not
misdirected itself either on law or on fact, then in
exercise of the power under Article 226 or Article 227
of the Constitution, the High Court should refrain
from interfering with such findings made by the
appropriate authorities. We have noted that both the
trial court and the appellate court after discussing
evidence have come to the conclusion that the
appellant was a licensee in possession on or before26
1986 4 SCC 447
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February 1, 1973. The learned trial court had
expressed doubt about Ex. A but ultimately accepted
the position. There was leave and licence agreement.
The learned Appellate Bench of the Court of Small
Causes doubted Ex. A and said that it was a
concocted story. It is true that there were
discrepancies in the evidence of the obstructionists
and there was inconsistency in the conduct of the
judgment-debtor in resisting the suit. Yet all these
are for the courts finding facts and it such fact-
finding bodies have acted properly in law and if the
findings could not be described as perverse in law in
the sense that no reasonable person properly
instructed in law could have come to such a finding,
such findings should not be interfered with within the
exercise of the jurisdiction by the High Court under
Article 226 and Article 227 of the Constitution.
17. In case of finding of facts, the court should not
interfere in exercise of its jurisdiction under Article
227 of the Constitution. Reference may be made to
the observations of this Court in Bathutmal Raichand
Oswal v. Laxmibai R. Tarta [(1975) 1 SCC 858 : AIR
1975 SC 1297] where this Court observed that the
High Court could not in the guise of exercising its
jurisdiction under Article 227 convert itself into a
court of appeal when the legislature has not
conferred a right of appeal. The High Court was not
competent to correct errors of facts by examining the
evidence and reappreciating. Speaking for the Court,
Bhagwati, J. as the learned Chief Justice then was,
observed at p. 1301 of the report as follows: (SCC p.
864, para 7)
“The special civil application preferred by the
appellant was admittedly an application under Article
227 and it is, therefore, material only to consider the
scope and ambit of the jurisdiction of the High Court
under that article. Did the High Court have
jurisdiction in an application under Article 227 to
disturb the findings of fact reached by the District
Court? It is well settled by the decision of this Court
in Waryam Singh v. Amarnath [AIR 1954 SC 215 :
1954 SCR 565] that the
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… power of superintendence conferred by Article 227
is, as pointed out by Harries, C.J., in Dalmia Jain
Airways v. Sukumar Mukherjee [AIR 1951 Cal 193
(SB)] to be exercised most sparingly and only in
appropriate cases in order to keep the subordinate
courts within the bounds of their authority and not
for correcting mere errors.
This statement of law was quoted with approval in
the subsequent decision of this Court in Nagendra
Nath Bose v. Commr. of Hills Division [AIR 1958 SC
398 : 1958 SCR 1240] and it was pointed out by
Sinha, J., as he then was, speaking on behalf of the
court in that case:
It is thus, clear that the powers of judicial
interference under Article 227 of the Constitution
with orders of judicial or quasi-judicial nature, are
not greater than the power under Article 226 of the
Constitution. Under Article 226 the power of
interference may extend to quashing an impugned
order on the ground of a mistake apparent on the
face of the record. But under Article 227 of the
Constitution, the power of interference is limited to
seeing that the tribunal functions within the limits of
its authority.”
18. The history and the development of the writ of
certiorari, and scope and ambit of its application have
been emphasised by Lord Denning
in R. v. Northumberland Compensation Appeal
Tribunal, Ex Parte Shaw [(1952) 1 All ER 122, 128] .
It is not necessary to reiterate these. But the courts
must guard themselves against the error mentioned
by Morris, L.J. in the said decision at page 133 to use
the power under Article 227 as the cloak of an appeal
in disguise. The writ of certiorari does not lie in order
to bring up an order or decision for rehearing of the
issues raised in the proceedings. These inhibitions
are more often than not transgressed by the courts in
exercise of jurisdiction under Article 227.
19. In this connection reference may also be made to
the observations of this Court in Harbans
Lal v. Jagmohan Saran [(1985) 4 SCC 333] . See in
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this connection the observations of this Court
in Trimbak Gangadhar Telang v. Ramchandra Ganesh
Bhide [(1977) 2 SCC 437 : AIR 1977 SC 1222] , Smt
M.M. Amonkar (Smt) v. S.A. Johari [(1984) 2 SCC
354] and also the observations of this Court
in Harbans Lal v. Jagmohan Saran [(1985) 4 SCC
333] .
20. It is true that in exercise of jurisdiction under
Article 227 of the Constitution the High Court could
go into the question of facts or look into the evidence
if justice so requires it, if there is any misdirection in
law or a view of fact taken in the teeth of
preponderance of evidence. But the High Court
should decline to exercise its jurisdiction under
Articles 226 and 227 of the Constitution to look into
the fact in the absence of clear-cut down reasons
where the question depends upon the appreciation of
evidence. The High Court also should not interfere
with a finding within the jurisdiction of the inferior
tribunal except where the findings were perverse and
not based on any material evidence or it resulted in
manifest injustice (see Trimbak Gangadhar
Telang [(1977) 2 SCC 437 : AIR 1977 SC 1222] ).
Except to the limited extent indicated above, the
High Court has no jurisdiction. In our opinion
therefore, in the facts and circumstances of this case
on the question that the High Court has sought to
interfere, it is manifest that the High Court has gone
into questions which depended upon appreciation of
evidence and indeed the very fact that the learned
trial Judge came to one conclusion and the Appellate
Bench came to another conclusion is indication of the
position that two views were possible in this case. In
preferring one view to another of factual appreciation
of evidence, the High Court transgressed its limits of
jurisdiction under Article 227 of the Constitution. On
the first point, therefore, the High Court was in error.
21. But the findings of the High Court on the factual
aspect would not help the appellant to become a
licensee under Section 15-A of the said Act. It is to
that question, therefore, attention must be given.
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23.14. By relying on Chandavarkar Sita Ratna Rao’s
case, he submits that a Constitutional Court
exercising jurisdiction under Article 227 could
go into questions of fact and look into the
evidence if justice so requires it, in the present
case, he submits that justice would require this
Court to consider all the facts and pass
necessary orders and in this regard he submits
that the show-cause notice issued by the Forest
Department in unjust, moreover, the Forest
Department has been harassing the Petitioners
for the last several years and the Petitioners do
not expect to be served any justice from the
Forest Department itself.
23.15. He relies upon the decision in Shamshad
Ahmad and Ors. Vs Tilak Raj Bajaj and
Ors.27, more particularly para nos. 31 & 32
27
2008 9 SCC 1
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thereof, which are reproduced hereunder for
easy reference:
31. So far as the larger question, namely, whether
subsequent events can be taken into consideration by
an appellate, revisional or writ court, we express no
opinion in view of the fact that the appeal can be
decided without entering into the said controversy.
We may, however, note that the learned counsel for
both the sides referred to leading decisions of this
Court. In some of the cases, the Court held that the
crucial date for deciding requirement of a landlord is
the date of institution of suit/proceeding. In other
cases, however, a contrary view has been taken.
There is thus a cleavage of opinion on that vexed
issue. We leave the matter there.
32. On merits, in our judgment, the submission of
the learned counsel for the appellants is well founded
that the prescribed authority was wrong in dismissing
the application filed by the landlords. We had already
observed that the prescribed authority negatived the
contention of the tenant that the application was not
maintainable. It, therefore, entered into the merits of
the matter and decided it against the landlords. It
observed that Applicant 6 hailed from “a reputed
family of Dehradun” and “they had a very big
business of timber wood”. It also noted that Applicant
6 had been enjoying the facilities of car, scooter,
telephone, etc.
23.16. By relying on Shamshad Ahmad‘s case he
again submits that the powers of the High
Courts under Article 226 and 227 are very wide
and extensive, it is for this Court to exercise
such jurisdiction to render justice otherwise,
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the powers which have been conferred on this
Court would be rendered redundant.
23.17. He relies upon the decision in Sanjay Kumar
Jha vs Prakash Chandra Chaudhary and
Ors.28, more particularly para No. 13 thereof,
which is reproduced hereunder for easy
reference:
13. It is well settled that in proceedings under
Article 226 of the Constitution of India, the High
Court cannot sit as a court of appeal over the
findings recorded by a competent administrative
authority, nor reappreciate evidence for itself to
correct the error of fact, that does not go to the root
of jurisdiction. The High Court does not ordinarily
interfere with the findings of fact based on evidence
and substitute its own findings, which the High Court
has done in this case. Even assuming that there had
been any error in the computation of marks in
respect of fixed and movable assets, the High Court
could, at best, have remitted the case of respondent
Prakash Chandra Chaudhary to the authorities
concerned for reconsideration.
23.18. By relying on Sanjay Kumar Jha‘s case his
submission is that the High Courts cannot
function as a Court of appeal, insofar as the
reappreciation of evidence is considered when a
28
2019 2 SCC 499
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fact in question is concerned; at most, it may
remit such a matter to cure evidential
deficiencies, if any.
23.19. At this stage, on enquiry with the counsels if
they are agreeable for a fresh joint survey in
terms of the notification 08.01.2021, though
Sri.Kiran Ron, learned AAG submits that the
State is ready for such a joint survey to be
carried out, Sri. Chandan submits that there is
no fresh survey which is required to be carried
out, survey has already been carried out and a
report is placed on record which could be
considered by this Court.
23.20. On further enquiry, as to whether the claim of
the Petitioners is that the lands subject matter
of the present petition were the forest lands
mentioned in the notification dated 08.09.2021,
but only on account of grant they were not
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forest land or is the case of the Petitioners that
the land in Sy.No.68 and 69 belonging to the
Petitioners were never forest land; the
submission of Sri.Chandan, learned counsel is
that the land which is owned and possessed by
the Petitioners are not forest lands as per the
joint survey report and as such, there is no
requirement of a fresh survey to be carried out.
23.21. In this regard he refers to the pleadings and or
applications which have been filed as also the
orders which have been passed in the earlier
proceedings. By referring to the application
under Order 6 Rule 17 filed by the plaintiff in
OS No.1424/2006 he submits that the
application for amendment filed therein has
been rejected, hence the question of any
survey now to be conducted would not arise.
The said order having been challenged in WP
No.23284/2023, he submits that this Court vide
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its order dated 27.10.2023 recording the
submission of the learned AAG has dismissed
the Writ Petition as not pressed. Thus, the
amendment not having been pressed into
service, there is no challenge to the sale deeds
executed by I.N.Mutthanna nor is there any
allegation that false documents have been
created over the forest property, as such, the
question of appointment of a Commissioner
would not arise.
23.22. He relies upon the IA under Order 26 Rule 9
filed in RFA No.160/2024 for conduct of a
detailed joint survey as per the boundaries
mentioned in Notification dated 08.01.2021,
which has been objected to by the Petitioners
herein and the said application is still pending
consideration. When such an application is
pending in RFA 160/2024 he submits that this
Court ought not to appoint a Commissioner to
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conduct a survey of the aforesaid property in
terms of the notification dated 08.1.2024.
24. Heard Sri Chandan, learned counsel for the
Petitioners , Sri. Kiran Ron, learned AAG for the
State. Perused papers.
25. The points that would arise for the consideration of
this Court are:
i. Whether once a notification has been
issued under Section 17 of the Mysore
Forest Regulation, 1900, notifying a
particular land as a forest land, would that
land be forest land in perpetuity or would
grant of a portion of the land covered
under the said notification exempt such
granted land from the notification under
the rigours of the said Regulations?
ii. Whether the present Writ Petition is
maintainable on account of the same,
requiring this Court to consider a disputed
question of fact?
iii. Whether the respondents could have
issued a fresh show cause notice in
F.O.C.No. 7/2006-07, F.O.C. 8/2006-07,
F.O.C. 9/2006-07, F.O.C. 13/2006-07 and
F.O.C. 14/2006-07 after the said
proceedings have been quashed in
Crl.P.1852-57 OF 2012?
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iv. Whether the survey carried out in
pursuance of the orders in Crl.Petitions
No.1852-57 of 2012 indicating that there
is no encroachment of forest land would
enure to the benefit of the Petitioners,
requiring the Writ Petitions to be allowed?
v. Whether the filing of the civil suit by the
Forest Department and the orders passed
therein would disentitle the Forest
Department from initiating proceedings
under Section 64A of the Karnataka Forest
Act, 1963?
vi. Can the government, after notifying a land
to be forest land under Mysore Forest
Regulations, 1990 vide notification
08.01.2021 grant any land to defence
personnel or otherwise, and what is the
effect thereof?
vii. Whether there is any delay and if there is
delay, would it disentitle the Forest
Department from taking action under
Section 64A?
viii. What order?
26. I answer the above points are as under;
27. ANSWER TO POINT NO.1: Whether once a
notification has been issued under Section 17 of
the Mysore Forest Regulation, 1900, notifying a
particular land as a forest land, would that land
be forest land in perpetuity or would grant of a
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portion of the land covered under the said
notification exempt such granted land from the
notification under the rigours of the said
Regulations?
27.1. In terms of Section 3 of the MFR 1900, any land
at the disposal of the government may be
constituted as a State Forest in the manner
provided thereunder. Section 3 is reproduced
hereunder for easy reference:
3. Any land at the disposal of Government may be
constituted a State Forest in the manner hereinafter
provided.
27.2. In terms of Section 4, whenever it is proposed
to constitute any land as State forest, the
government shall publish a notification in the
Official Gazette specifying as nearly as possible
the situation limits of such land, declare that it
is proposed to constitute such land as forest
land, and appoint an officer called the Forest
Settlement Officer [FSO] to enquire into and
determine the existence, nature and extent of
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any rights claimed by or at least to exist in
favour of any person. Section 4 of the MFR
1900 is reproduced hereunder for easy
reference:
4. Whenever it is proposed to constitute any land a
State Forest the Government shall publish the
notification in the official Gazette-
(a) Specifying as nearly as possible the situation and
limits of such land.
(b) declaring that it is proposed to constitute such
land a State Forest and;
(c) appointing an officer (hereinafter called the “the
Forest Settlement Officer”) to inquire into and
determine the existence, nature and extent of any
rights claimed by, or alleged to exist in favour of, any
person in or over and land comprised within such
limits or to any forest produce of such land, and to
deal with the same as provided in the chapterThe officer appointed under clause(e) of this section
ordinarily be a person other than a Forest Officer;
but a Forest Officer may be appointed by the
Government to assist the Forest Settlement Officer in
the enquiry prescribed by this Chapter.
27.3. In terms of Section 5, where a notification has
been published under Section 4, the FSO shall
publish in the official Gazette and the
headquarters of each Taluk in which any
portion of land comprised in such notification is
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situate, and every town and village in the
neighbourhood of such land proclamation,
specifying as nearly as possible the situation
limits of the proposed forest, setting forth the
substance of the provision of Section 4,
explaining the consequences that would ensue
on such forest being constituted by fixing a
period of not less than three months from the
date of publication of such proclamation, and
requiring every person claiming any right or
making any claim either to present to such
officer within such period a written notice
specifying or to appear before him within such
period and state the nature of such right or
claim by producing document in support
thereof. Section 5 of the MFR 1900 is
reproduced hereunder for easy reference:
5. When a notification has been published under
section 4, the Forest Settlement Officer shall publish,
in Kanarese, in the official Gazette and at the
headquarters of each taluk in which any portion of the
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land comprised in such notification is situate, and in
every town and village in the neighbourhood of such
land, a proclamation-
(a) specifying as nearly as possible the situation and
limits of the proposed forest;
(b) setting forth the substance of the provisions of
section 6;
(c) explaining the consequences which, as hereinafter
provided, will ensue on such forest being constituted a
State Forest; and
(d) fixing a period of not less than three months from
the date of publishing such proclamation, and
requiring every person claiming any right or making
any claim referred to or mentioned in section 4, either
to present to such officer within such period a written
notice specifying, or to appear before him within such
period and state, the nature of such right or claim,
and in either case to produce all documents in support
thereof.
27.4. In terms of Section 7 the FSO shall take into
consideration all the statements and contention
and thereafter, enquire into all claims duly
preferred as regards the rights mentioned
under Section 4(c) as also under Section 5(d),
so far as they may be ascertainable from the
Government records and the evidence of every
person likely to be acquainted with the same in
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such a manner as to assist in ascertaining the
existence and extent of any right or claim.
27.5. In terms of Section 13, after recording all the
claims and considering the same, the FSO is
empowered to pass such an order which, as far
as possible, shall ensure the continued exercise
of admitted rights. Section 13 of MFR 1900 is
reproduced hereunder for easy reference;
13. After making such record, the Forest Settlement
Officer shall pass such order as will as far as possible,
a ensure the continued exercise of admitted rights.
For this purpose the Forest Settlement Officer may-
(a) provide some other reasonably convenient right of
way; or
(b) set out some other forest tract of sufficient extent,
and in a locality reasonably convenient, for the
exercise of rights to pasturage or other forest
produce, and record an order conferring such rights
on claimants to the admitted extent; or
(c) so alter the limits of the proposed State Forest as
to exclude the tract over which rights of way or water
extend or to exclude forest land of sufficient extent
and in a locality reasonably convenient for the
purposes of the claimants with regard to pasturage or
other forest produce. Land so excluded may be either
outside the boundaries of the forest as finally settled
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or within them, in which latter case it shall be
demarcated and notified as an enclosure within which
the rules relating to State Forest shall not apply; or
(d) record an order, continuing to claimants the right
of way or to pasturage or other forest produce or
water (as the case may be) to the admitted extent, at
such seasons, within such portions of the pro-posed
State Forests, and under such rules, as may from
time to time be prescribed by Government to ensure
the continuance but non-abuse of such rights.
27.6. Any person who is aggrieved by the order of the
FSO can file an appeal under Section 15 of the
MFR 1900. On consideration of the appeal and
orders being passed in terms of Section 16,
thereafter under Section 17, the government
may publish a notification in the Official Gazette
specifying the limits of the forest, which is
intended to constitute a State forest and
declaring the same to be a State forest from
the date fixed by such notification.
27.7. In the present case, the preliminary notification
under Section 4 having been published, after
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following the due procedure, the final
notification under Section 17 was published on
08.01.1921 declaring the lands as indicated
therein to be forest land. Thus, it is after an
exhaustive procedure, which is intended to
address the rights of all concerned, that a Final
notification was published, which has attained
finality, the same not having been challenged
by anyone till date.
27.8. It is the above provisions and the above
notification, which are required to be
considered by this court to ascertain the rights
of the parties.
27.9. The submission of Sri.Chandan K., learned
counsel for the petitioners, is that even if the
land were said to be covered under the final
notification of Section 17, the said land had
been granted in favour of Sri Manik Raj, a
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defence personnel on 17.11.1932 by Darkast
No.807/3233 as entered in the Kethwar
register. The grant having been made in favour
of Sri.Manik Raj, who had not paid the due
taxes, the property was brought to auction in
the year 1936 with respect to survey No.69,
when the same was purchased by
Sri.Subbaraya, Mudaliyaar, who subsequently
sold the property to various persons.
27.10. The grant having been made in favour of
Sri.Manik Raj, the State cannot contend
otherwise by now claiming that there is no such
grant. In terms of Section 20 of the MFR 1900,
the restriction in obtaining any right is only
otherwise than through succession or grant or
contract in writing made on behalf of the
government. In the present case, there being a
grant in favour of Mr. Manikaraj, the restriction
under Section 20 would not be applicable. The
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right obtained by Manikaraj is in accordance
with the MFR 1900, which cannot be disturbed.
The grant having been made for and on behalf
of the government, the same is found
mentioned in the Kethwa Register, pursuant to
which taxes have been paid by Sri.Manikaraj
and thereafter by Sri.Subramanya Mudaliyar
and as such, irrespective of whether a
notification has been issued under Section 17 or
not, the requirement of Section 20 of the MFR
1900 being satisfied, the respondent-State
cannot agitate any claim over the property.
27.11. His submission is also that, insofar as survey
No.68 is concerned, this land had been granted
in favour of Sri Muniyappa Devanahalli, which
also complies with the requirement of Section
20 of the MFR 1900. A mortgage had been
created on the said land, due to default in
payment of the monies, the Assistant Registrar
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of Co-operative Societies had initiated
proceedings, conducted an auction of the
property when Smt.Sajeeda Begum,
participated in the auction and was declared the
successful bidder. As such, his submission in
respect of survey No.68 is that the lands
initially granted in favour of Muniyappa
Devanahalli were later on auctioned by a
government officer, which also stands the test
of section 20 of MFR 1900, and no claim can be
made by the State in relation thereto.
27.12. As regards the proceedings which have been
initiated on Section 64 of the FCA 1980, he
submits that those proceedings could be
initiated only as regards a reserved forest,
district forest, village forest, or protected
forest, if found to be unauthorisedly occupied
by any person. Contending that the
requirement of Section 20 has been satisfied,
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his submission is that once the grant has been
made, the land will no longer be forest land but
would be private land belonging to the grantee
and as such Section 64A would not be
applicable. It is on that basis a submission is
made that if a grant of land is made under
Section 20, the said land cannot be subjected
to a proceedings under Section 64A.
27.13. Reliance has been placed on the decision in
B.S. Sandhu‘s case to contend that the word
‘forest’ must be understood according to
dictionary meaning and for the same to be so
done, the particular land is required to be
recorded as forest land in government records.
27.14. In the present case, survey Nos.68 and 69 not
being shown as forest land or government land
in the revenue records, the government cannot
make any claim to initiate proceedings under
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27.15. By relying on Anand Arya’s case, it has been
contended that the contents of the revenue
records have to be looked into and when the
revenue records do not indicate the land to be
shown as forest land, the claim of the State
that it is forest land is unsustainable.
27.16. Reliance is placed on Elizabeth Jacob‘s case
to contend that when a common man on the
basis of the government documents is led to
believe that the land is not forest land, the
notification even if issued under Section 17 of
the MFR 1900 would not be applicable thereto,
entitling the Respondent-State from invoking
the powers under Section 64A of the KFA.
27.17. Per Contra, the submission of Sri.Kiran Ron,
learned Additional Advocate General is that, the
notification issued on 8.01.1921 refers to
Survey Nos.66 and 67 of Chikkasane and
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survey No. 14 of Bhuvanahalli, these survey
numbers underwent a change with survey
No.66 being renumbered as survey No.68 and
survey No.67 being renumbered as survey
No.69 and survey No.14 being renumbered as
survey No.30 and as such, it is both the old
numbers and the new numbers which are to be
taken into consideration together. His
submission is that the notification being in
respect of old survey Nos.66 and 67, new
survey No.68 and 69, it is those survey
numbers which will be covered under the
Section 17 notification.
27.18. The reference made by the petitioners to survey
Nos.68 and 69 are as regard the old survey
Nos.68 and 69 and not new survey Nos.68 and
69, therefore by referring to lands in old survey
Nos.68 and 69, the petitioners are seeking to
assert the title on new survey Nos.68 and 69
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which is impermissible since new survey No.68
was earlier survey No.66 and new survey No.69
was earlier survey No.67 which were declared
to be Bhuvanahalli State forest vide notification
dated 8.01.1921. On that basis, he submits
that there is a very basic issue as regards the
identity of the property. There is no grant of
land made in old survey Nos.66 and 67.
27.19. His submission is that it is not the survey
number which is required to be considered, but
it is the identification and boundaries of the
property which are required to be considered.
27.20. In this regard, by relying on various judgments
cited supra, namely Narasimha Sastry’s
case, Sheodhyan Singh‘s case, Y.
Subbarao’s case and Mallaiah’s case that it
is the boundaries which would prevail over the
measurement or, the identification of a land by
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way of survey number or the like and as such in
so far as the boundaries forming part of the
notification in Section 17 of the MFR 1900, the
said notification in Section 17 would operate
perpetually.
27.21. Alternatively, by relying on Nirvana Gowda’s
case, he submits that when a land is included
as a reserved forest, the revenue records and
the contents thereof are irrelevant. Issuance of
saguvali chits and/or the like would not confer
any title on the said land. Once the land is
declared to be forest land, the revenue
authorities have no power to deal with the
forest land and by relying on Section 30 of MFR
1900, he submits that until and unless a
notification is issued categorically stating that a
land ceases to be a State forest or a portion of
a State forest, the land would continue to be a
State forest.
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27.22. His submission is also that the notification
dated 8.01.1921 not having been challenged,
the same continuing to be in force, the
Petitioners cannot allege contrary to the said
notification and in this regard, he relies upon
the decision in Brijesh Reddy and Surjan
Singh. On that basis he submits that a land
once reserved as a forest or reserved forest
cannot be de-reserved without a notification
having been issued under section 30 in that
regard.
27.23. It is in the background of the above submission
that the above point framed would have to be
considered and answered. The relevant
provisions have been extracted hereinabove, as
also the submissions made by both the
Counsels.
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27.24. What has been challenged is only a Show Cause
notice and this court would have normally
relegated the petitioners to reply to the show
cause notice, however, there being an
insistence on part of the counsel for Petitioners
that all issues have to be considered by this
court and the petitioners having submitted to
the jurisdiction of this court for such
consideration that the same have been taken
up for consideration.
27.25. There is substance in the submission of Learned
Additional Advocate General Sri. Kiran Rhon,
learned counsel appearing for the State,
Section 20 cannot be considered to be an
exception to Section 17 of the MFR 1900 in all
circumstances. Section 20 is reproduced
hereunder for easy reference:
20. No right of any description shall be acquired in or
over a State Forest, except by succession or under grant
or contract in writing made by or on behalf of the
Government or of some person in whom such right or the
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power to create such right was vested when the
notification under section 17 was published.
27.26. Section 20 would indicate that no right of any
description be acquired in or over a state forest
except by succession or under a grant or
contract in writing, made by or on behalf of the
government or of some person in whom such
right or the power to create such right was
vested when the notification under Section 17
was published. For Section 20 to be applicable
it is required that a grant or contract in writing
is made by or on behalf of the Government or
of some person in whom such right or the
power to create such right was vested when the
notification under section 17 was published,
i.e., to say the time period for consideration of
such grant is at the time when the section 17
notification was issued and not subsequently.
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27.27. Section 17 provides for the land declared as
forest to be deemed as a State forest, and
Section 20 provides an exception for a private
person to acquire the land declared to be a
State forest, subject to the conditions being
satisfied. By an ex facie reading of Section 20,
it is clear that though Section 17 is one which
will operate in perpetuity but is however
subject to the rights exercised by the State
under Section 20, those conditions are required
to be satisfied for Section 20 to be made
applicable.
27.28. Section 20 is worded in the negative,
categorically indicating that “no right of any
description shall be acquired” in or over a State
Forest and qualifies the same by exceptions
namely (i) by succession or (ii) under grant or
contract in writing made by or on behalf of the
Government or of some person in whom such
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right or the power to create such right was
vested when the notification under section 17
was published. The Petitioners seek to rely not
on the general law but on the exception, hence
it is required for the petitioners to satisfy the
requirement/s of the exception/s.
27.29. In so far as the First Exception is concerned, if
a person had a right over the forest land, which
had not been considered before the issuance of
the Section 17 notification, such rights could be
passed on by way of succession, which the
person claiming to have acquired would have to
prove, be that as it may, this aspect is not
being considered in detail in the present case
since no claim has been made under this
exception.
27.30. As regards the second exception, a right over
forest land can be acquired under a grant or
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contract in writing made by or on behalf of the
Government or of some person in whom such
right or the power to create such right was
vested when the notification under section 17
was published. Thus, the grant or contract has
to be firstly in writing and secondly made by or
on behalf of the Government and cannot be by
way of any agreement with a private party.
27.31. Insofar as survey No.69 is concerned, by
relying on the Khetwar register, it is sought to
be contended that the said land has been
granted in favour of Sri. Manik Raj on
17.11.1932, who was a defence personnel in
terms of dharkast No.807/32-33 as entered in
the Khetwa register, which has been placed on
record. Thus, what has been placed on record is
only the Khetwar register to indicate the
alleged acquisition of title by Sri. Manikaraj was
by way of a grant/dharkast made in the year
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1932. The dharkast No.807/32-33 is not placed
on record, and there are no other documents
other than the Khetwar register placed on
record. Thus, the Khetwar register cannot be
regarded as establishing the grant by or on
behalf of the Government. The report of the
Thasildar indicates that there is no such grant
made and despite a search having been made
no documents have been traced in that
regards, thus categorically establishing that
there is no such grant, the petitioners
themselves have not placed on record any such
grant order.
27.32. The alleged grant/ Dharkast is admittedly
subsequent to the notification issued under
Section 17, which was issued on 8.1.1921. It
has not been established that the grant is in
accordance with law, the subsequent event of
the said Sri. Manik Raj not having made
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payment of the land revenue in relation to the
said land, which had been granted to him, the
said land was brought for auction in the year
1936, and in the said auction, Sri. Subbaraya
Mudilyar is stated to have purchased the said
property, is a private transaction and not one
which can be said to be a grant in terms of
Section 20. The auction having been conducted
on account off non-payment of land revenue,
Sri. Subbaraya Mudaliyar being successful in
the said auction, a sale deed is stated to have
been executed in favour of Sri.Subbaraya
Mudaliyar, which would not satisfy the
requirement of Section 20, since the acquisition
of title by Sri. Subbaraya Mudaliyar is under
contract, in writing, in furtherance of an auction
and not a grant made by the government, or on
behalf of the government. Subsequent thereto,
there have been various private sales in respect
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of survey No.69, which would not satisfy the
strict requirement of Section 20. Section 20
being an exception it is required that the same
is strictly construed and no liberal interpretation
can be given to the same as contended by
Shri K. Chandan.
27.33. Insofar as survey No.68 is concerned, the said
land had been allegedly granted to Sri.
Muniyappa Devanahalli in the year 1945, again,
no document of grant has been placed on
record. Sri. Muniyappa of Devanalli had
borrowed money by mortgaging the property. A
dispute had been initiated under the Karnataka
Co-operative Societies Act. The Assistant
Registrar Co-operative Societies had bought the
property for auction, where the same was
purchased by Smt. Sajeeda Begum. insofar as
the grant is concerned in favour of Sri.
Muniyappa Devanahalli, the same would again
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would not satisfy the requirement of Section 20
of the MFR 1900, insofar as the sale in favour
of Smt.Sajeeda Begum is concerned, it is on
account of the mortgage dues that the
property, which was mortgaged as security for
a private loan, was brought for sale and the
sale, though having been conducted by an
officer of the government, and a sale deed
came to be executed in favour of Smt.Sajeeda
Begum, the transaction was essentially a
private transaction and would not satisfy the
strict requirement of a Grant under section 20
of the Act. Thus, even insofar as the land in
survey No.68 is concerned, the manner of
acquisition of title would not satisfy the
requirement of Section 20, which is an
exception to Section 17, as indicated supra.
27.34. As regards the aspect of boundaries prevailing
over the measurements and the confusion
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regarding survey numbers, many arguments
have been advanced on this aspect. The
submission of the counsel for the petitioners is
on the basis of the Survey Number and not as
per the boundaries in the notification of the
year 1921.
27.35. On enquiry with the counsels if they are
agreeable for a fresh joint survey in terms of
the notification 08.01.2021, though Sri.Kiran
Ron, learned AAG submits that the State is
ready for another such joint survey to be
carried out, Sri. Chandan submits that there is
no fresh survey which needs to be carried out;
a survey has already been carried out, and a
report has been placed on record, which could
be considered by this Court.
27.36. On further enquiry, as to whether the claim of
the Petitioners is that the lands subject matter
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of the present petition were the forest lands
mentioned in the notification dated 08.09.2021,
but only on account of grant they were not
forest land or is the case of the Petitioners that
the land in Sy.No.68 and 69 belonging to the
Petitioners were never forest land; the
submission of Sri.Chandan, learned counsel, is
that the land which is owned and possessed by
the Petitioners is not forest land as per the joint
survey report, and as such, there is no
requirement of a fresh survey to be carried out.
In that background, it would be required to be
considered if the Survey report can be accepted
as is.
27.37. A joint survey was conducted on 28.01.2015
and 29.01.2015 by the Tahsildar Bhuvanahalli,
in pursuance of the Order Dated 13.06.2012 in
Criminal Petition No. 1852-1857 of 2012. The
old survey No. 66 of Chikkasane village has
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now been renumbered as survey No. 68,
Survey No. 67 of Chikkasane village is now
renumbered as survey No. 69.
27.38. The Tahsildar has submitted a survey report in
respect of old survey No. 66 and old survey No.
67, and not with reference to new survey No.
68 and 69 is the contention of Shri Kiran Rohn,
and in that backround the survey report was
not accepted and fresh survey was directed to
be conducted since the survey was not
conducted in accordance with the Gazette
notification dated 08.01.1921.
27.39. Thereafter, the Technical Assistant and Deputy
Director of Land Records, Bangalore Rural
District, were directed by the Tahsildar,
Devanahalli Taluk to conduct a joint survey,
according to the notification dated 08.01.1921,
vide their correspondence dated 21.04.2017.
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27.40. On 10.07.2017, the ADLR, Devanahalli Taluk,
issued a notice to attend the joint survey to be
conducted on 25.07.2017. Though Petitioner
No.1 received the notice, the other Petitioners
refused to receive the notice. A survey was
conducted in the presence of Petitioner No. 3-
Sri. M. A. Mohammad Amanullah, who refused
to sign the Mahazar, which is apparent from the
report of the Assistant Conservator of Forests
dated 16.09.2017 addressed to the Deputy
Conservator of Forests. The new Survey report
it is claimed indicates that the land of the
petitioners comes within the boundaries of the
notification dated 08.01.1921 and as held in
Narasimha Sastry’s case, Sheodhyan
Singh‘s case, Y. Subbarao’s case and
Mallaiah’s case irrespective of the change in
Survey numbers, if the land falls within the
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boundaries of the notification of 1921, it would
be a forest land.
27.41. Irrespective of the numbering of the survey
numbers, what is required to be considered is
the boundaries of the notification of 1921; if the
land claimed by the Petitioners comes within
the boundaries of the forest land, action has to
be taken which cannot be faulted with.
27.42. Liberty having been reserved by this Court in an
order dated 13.06.2012 in criminal petition No.
1852 to 1857 of 2012, the first survey was
conducted of the Survey numbers and not as
per the notification of the year 1921, as such a
fresh survey has been conducted as per the
notification of the year 1921 and proceeded
therefrom in the very same proceedings,
namely FOC No.7, 8, 9, 13 and 14 of 2006-07.
A survey has now been conducted in terms of
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the notification dated 08-01-1921,
encroachment having been found, the
authorities are well within their rights to initiate
proceedings.
27.43. Hence I answer point No.1 by holding that
once a notification has been issued under
Section 17 of the MFR 1900 notifying a
particular land as a forest land, the said
notification would apply in respect of the
said land in perpetuity, subject to
denotification in terms of Section 30 and
or the exceptions detailed under Section
20, which would have to be strictly
established by the person/s claiming such
benefit of the exception/s.
28. ANSWER TO POINT No.2: Whether the present
Writ Petition is maintainable on account of the
same, requiring this Court to consider a
disputed question of fact?
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28.1. Much has been sought to be made out by
Sri.Kiran Ron, learned Additional Advocate
General, that the present writ petition is not
maintainable since the same relates to the
consideration of disputed questions of fact and
in this regard, reliance has been placed by him
on the decision of the Hon’ble Apex Court in
Kunishetty Satyanarayana‘s case to contend
that firstly, the disputed questions of fact.
Secondly, that what has been challenged is only
a show cause notice under Section 64, which is
required to be replied to by the petitioners.
28.2. Per contra, Sri.K.Chandan., learned counsel
appearing for the petitioners relied on Anand
Arya’s case to contend that when land has
never been shown as forest land and those
lands have been granted by the government,
the land loses the character of a forest land and
even if it was a forest land and as such, no
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notice under Section 64A could be issued.
Reliance has also been placed on Elizabeth
Jacobs‘ case to contend that when the official
document itself indicated that the property was
not government land, private rights in respect
thereto could not be granted.
28.3. By relying on Godrej and Boyce case, it has
been submitted that when citizens acted for
several decades on the basis of what has been
held out by State, the State cannot belatedly
take action contrary thereto. These, he
submits, are points of law which are required to
be considered. It is not disputed questions of
fact which would be considered by this Court.
Even as regards that aspect, by relying on
Chandavarkar Sita Ratna Rao‘s case, his
submission is that a constitutional Court
exercising jurisdiction under Article 227 could
go into the question of facts on the basis of a
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question of law to render justice where so
required. The petitioners, having been harassed
by the respondent-State, this Court ought to
come to the rescue of the petitioners.
28.4. Reliance has been placed on the decision of the
Hon’ble Apex Court in Shamshad Ahmad’s
case, indicating that the powers of the High
Court under Article 226 and 227 are very wide
and extensive, and this Court can exercise such
writ jurisdiction to render justice as may be
required. On that basis he submits that in law,
the action taken by the respondent being
illegal, the enquiry to be conducted by this
Court limited to whether there was a grant
made under Section 20 bringing out the
exception under Section 20 to the notification
of Section 17 thereby confirming right on the
grantee and his successors, his submission is
that this Court ought to excise its powers under
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Article 226 and 227, in the background of the
above submission that the above point is
required to be answered.
28.5. Normally, though this Court has wide powers
under Articles 226 and 227, which cannot be
fettered by any particular provision of law, this
Court would refrain from entering into a deep
enquiry as regards disputed questions of facts
and leave the same to be decided by a
Court/authority exercising appropriate
jurisdiction.
28.6. A Judge of the High Court functions in various
capacities depending on the roster allocated by
the Hon’ble Chief Justice as the Master of Rolls.
It is not that a Judge of the High Court cannot
enquire into a disputed question of fact, which
is normally done in the case of a first appeal,
where the entire evidence is re-appreciated,
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thereby requiring an enquiry into all the facts
relating thereto. In a second appeal, a Judge of
the High Court would restrain himself to
consider the point of law, which is termed as a
substantial question of law to be determined. In
exercise of powers in different rosters like a
writ petition under Article 227, a Judge of the
High Court would exercise supervisory powers
to ascertain if the orders passed by the trial
Court are proper and correct. While exercising
revision jurisdiction, a Judge of the High Court
would consider if there is an error of jurisdiction
or an error in the exercise of powers, and so on
and so forth.
28.7. Insofar as the writ petition is concerned, the
same being as summary proceedings
whereunder the reliefs in the nature of issuance
of writ is sought for, a Judge of the High Court
exercising summary jurisdiction would normally
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refrain from enquiring into disputed questions
of facts unless they are ex facie evident.
28.8. Thus, the restriction imposed is a self-induced
restriction and not a restriction on the basis of
the Judge not having the power or ability to do
so. This restriction is also self-imposed to
protect the interest of the parties, inasmuch as
if there are disputed questions of fact, the
parties are required to be provided an
opportunity of adducing evidence, placing the
documents on record and also permitting them
to cross-examine each other to ascertain the
veracity thereof so as to arrive at the truth in
the matter.
28.9. Insofar as the present case is concerned,
essentially what has been contended is that a
grant made in favour of the petitioners is one
which would constitute an exception under
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Section 20 of the MFR 1900 and as such is an
exception to the restriction imposed by a
notification under Section 17 of MFR 1900.
28.10. Ex facie what has been placed on record is the
khetwa register on which basis it is alleged that
there is a grant made in respect of land in
survey No.69 in favour of Sri.Manik Raj, way
back in the year 1932, and of the subsequent
auction of the said property in the year 1936.
However, no order of grant has been placed on
record.
28.11. Similar, is the case as regards survey No.68,
which is alleged to be granted to Sri.
Muniyappa Devanahalli in the year 1945, again,
no document of grant has been placed on
record.
28.12. The actual grant orders in writing made by or
on behalf of the Government have not been
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placed on record, more so when the location of
the property has been ascertained to be located
within the boundaries of the notification of the
year 1921. The report of the Thasildhar
indicates that there is no such order of grant
available in respect of both the above survey
numbers.
28.13. Once the land is within the boundaries of the
notification as held by the Hon’ble Apex Court
in the celebrated judgment in Godavarman’s
case, in which case, on account of continuous
mandamuses which have been issued and the
constant monitoring by the Hon’ble Apex Court,
has resulted in saving of numerous forests and
removal of encroachments, all encroachers in a
forest area being required to be evicted.
28.14. A show-cause notice under Section 64-A is
issued only with a view to enable the person to
whom the notice is issued to show that his land
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does not fall within the boundaries of the forest
as drawn up by the Survey of India and as
contained in the notification issued in regard
thereto, in the present case the notification of
the year 1921. If the land is identified as falling
within the Survey of India boundary and/or the
notification, then there could be no other
defence open to the person concerned, namely
the encroacher, and the State would be under
an obligation and duty to evict the encroacher,
by force if necessary. The facts being ex-facie
clear that, as per the second survey carried
out, the subject land is within the forest
boundaries, the Petitioners or anyone claiming
through or under them cannot have any
defence.
28.15. These aspects being explicitly clear from the
documents on record, I am of the considered
opinion that there is no in-depth enquiry which
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is required to be conducted by this Court to
ascertain if there are any exfacie rights vested
with the petitioners.
28.16. Thus, I answer point No.2 by holding that,
insofar as the present case is concerned,
as regards the challenge to the notice
under section 64A, firstly, they do not
involve any disputed question of fact
requiring in-depth enquiry. Secondly, the
survey report indicating that the subject
property lies within the boundaries of the
forest notified in the year 1921, the
petitioners have no defence to any
eviction order to be passed against them,
however they have to be given an
opportunity to place any mitigating
circumstances on record for the purpose of
consideration of the time to be granted for
such eviction.
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29. ANSWER TO POINT NO.3. Whether the
respondents could have issued a fresh show
cause notice in F.O.C. No.7/2006-07, F.O.C.
No.8/2006-07, F.O.C. No.9/2006-07, F.O.C.
No.13/2006-07 and F.O.C. No.14/2006-07 after
the said proceedings have been quashed in
Crl.P.1852-57 OF 2012?
29.1. The submission of Sri K. Chandan, learned
counsel for the petitioners, is that a similar
notice under Section 64 was issued earlier in
the year 2006-07, and in furtherance thereof,
criminal FOC Nos. 7, 8, 9, 13, and 14 of 2006-
07 were registered. Challenging the same, the
petitioners had filed criminal petitions under
Section 482 of the Code of Criminal Procedure
in Criminal Petition No. 1852 to 1857 of 2012
and this court, vide order dated 13.06.2012
had quashed those proceedings, reserving
liberty to the Forest Department to conduct a
survey. The said orders having attained finality,
the FOC proceedings having been quashed, the
question of issuance of one more set of notices
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as done now in the very same FOC
proceedings, albeit after a unilateral survey
carried out by the Forest Department, is
untenable.
29.2. The submission of Sri.Kiran Ron, Additional
Advocate General, notes that although the
proceedings were quashed, liberty was reserved
to the Forest Department to conduct a survey.
A survey having been carried out by the Forest
Department, where encroachment was found,
proceedings have been continued in the said
FOC matters. As such, he submits that the
continuation of the said proceedings is proper
and correct and no fault was committed.
29.3. Having heard the arguments of both the
counsels and having perused the papers, there
is no dispute as regards the earlier proceedings
having been initiated in the year 2006-07 and
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the same having been quashed. The allegations
made in those proceedings are the very same
allegations which are made in the present
proceedings. The orders passed in criminal
petition No.1852 to 1857 of 2012 are
categorical inasmuch as those FOC proceedings
initiated in the year 2006-07 have been
quashed only on the ground that there was no
survey conducted and in that background
liberty was reserved to the forest department
to carry out a survey in the presence of the
petitioners to ascertain if there was any
encroachment. In furtherance thereof, a survey
has been carried out in the presence of the
petitioners as regards the aforesaid survey
numbers and a categorical remark made in the
said survey by the surveyor that there is no
encroachment by the petitioners of any forest
land.
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29.4. Liberty having been reserved by this Court in an
order dated 13.06.2012 in criminal petition No.
1852 to 1857 of 2012, the first survey which
was conducted of the Survey numbers not
being as per the notification of the year 1921,
as such a fresh survey has been conducted as
per the notification of the year 1921 and
proceeded therefrom in the very same
proceedings, namely FOC 7. The quashing of
FOC No.7, 8, 9, 13 and 14 of 2006-07 was only
with reference to the joint survey not having
been conducted and liberty having been
reserved to conduct such a survey. A survey
has now been conducted in terms of the
notification dated 08-01-1921, encroachment
having been found, the authorities are well
within their rights to initiate proceedings.
29.5. The subsequent survey, in my considered
opinion, is not a unilateral survey conducted by
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the forest department. On 10.07.2017, the
ADLR, Devanahalli Taluk, issued a notice to the
Petitioners to attend the joint survey to be
conducted on 25.07.2017. Though Petitioner
No.1 received the notice, the other Petitioners
refused to receive the notice. A survey was
conducted in the presence of Petitioner No. 3-
Sri. M. A. Mohammad Amanullah, who refused
to sign the Mahazar, which is apparent from the
report of the Assistant Conservator of Forests
dated 16.09.2017 addressed to the Deputy
Conservator of Forests. The new Survey report
indicates that the land of the petitioners comes
within the boundaries of the notification dated
08.01.1921.
29.6. As indicated supra, the orders passed in
Crl.Petitions No.1852 to 1857 of 2012 are
categorical. The entire order thereof is
reproduced hereunder for easy reference:
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ORDER
Learned Government Pleader has filed statement of
objections.
2. In these petitions, petitioners have sought for
quashing of the proceedings in FOC Nos.7/06-07, 8/06-
07, 9/06-07, 13/06-07, 14/06-07 pending on the file of
CJ (Jr. Dn.) and JMFC, Devanahalli.
3. The allegation in the complaint is that, the petitioners
have encroached upon the forest land and accordingly
case was registered in FOC Nos.7/06-07, 8/06-07, 9/06-
07, 13/06-07, 14/06-07 for the offences punishable
under Sections 24(g), (gg), 73(d) of Karnataka Forest
Act and Rule 41 of Rules made there under and Section
41(2) of Karnataka Conservative of Forest Act and
Section 2 of Central Forest Protection Act. As against the
registration of the cases, the petitioners are before this
court.
4. The facts, which are not in dispute are that, in the
year 1936 itself it appears that public auction conducted
in court proceedings for non payment of the revenue. In
the court proceedings, one Subbaraya Mudaliyar
purchased the properties. Thereafter, these petitioners
each have purchased portion of the properties in 1977.
It is also not in dispute that, the Forest and State had
filed a suit against one of the purchasers in
O.S.No.1424/2006 seeking declaration that the land in
possession of the said properties, land encroached upon
by the petitioners. It is also not in dispute that the said
suit has been dismissed.
5. If, really the forest department finds that there is any
encroachment which the petitioners or their predecessor
were in possession for more than half century, it is open
to the forest department to conduct survey of the land
in the presence of the occupier/owner/purchaser of the
said property and based on the survey, if they find there
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is any encroachment they can proceed against the
occupier in accordance with law.
6. Further, considering that the even before the
purchase of the properties by the petitioners, the title
deeds were in the name of the vendor, these petitioners
have been in possession for over complaint ought not
have been filed without proper verification. Hence, I find
complaints filed by the forest authority are perverse and
liable to be quashed.
Accordingly, these petitions are allowed. Proceedings in
FOC Nos.7/06-07, 8/06-07, 9/06-07, 13/06-07, 14/06-
07 pending on the file of CJ (Jr. Dn.) and JMFC,
Devanahalli stand quashed.
Liberty is reserved to the Forest Department, if there is
any encroachment, it may conduct the survey and
proceed with the matter in accordance with law.
29.7. Though the FOC proceedings initiated in
furtherance of the notices issued under section
64A of the FC Act had been quashed, the said
proceedings did not come to an end. Liberty
was reserved to the Forest Department, if there
is any encroachment, it may conduct the survey
and proceed with the matter in accordance with
law.
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29.8. If a survey were to be carried out and
encroachment found, matter could be
proceeded with in accordance with law, it is in
view thereof that fresh notices under Section
64A would be required to be issued and have
been so issued, the petitioner would be heard
on the same, which is what has been done. The
petitioners will be given an opportunity to reply
to the same, and thereafter, action to be taken.
29.9. In the present matter, a joint survey was
conducted on 28.01.2015 and 29.01.2015 by
the Tahsildar Bhuvanahalli, in pursuance of the
Order dated 13.06.2012 in Criminal Petition No.
1852-1857 of 2012. The old survey No. 66 of
Chikkasane village has now been renumbered
as survey No. 68, Survey No. 67 of Chikkasane
village is now renumbered as survey No. 69.
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29.10. The Tahsildar has submitted a survey report in
respect of old survey No. 66 and old survey No.
67, and not with reference to new survey No.
68 and 69, it is in that backround that the
survey report was not accepted and fresh
survey was directed to be conducted since the
survey was not conducted in accordance with
the Gazette notification dated 08.01.1921.
29.11. Liberty having been reserved by this Court in an
order dated 13.06.2012 in criminal petition No.
1852 to 1857 of 2012, the first survey which
was conducted of the Survey numbers and not
as per the notification of the year 1921, as such
a fresh survey has been conducted as per the
notification of the year 1921 and proceeded
therefrom in the very same proceedings,
namely FOC No.7, 8, 9, 13 and 14 of 2006-07.
The proceedings were quashed only with
reference to the joint survey not having been
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conducted and liberty having been reserved to
conduct such a survey. A survey has now been
conducted in terms of the notification dated 08-
01-1921, encroachment having been found, the
authorities are well within their rights to initiate
proceedings.
29.12. I answer point No.3 by holding that the
Respondents have rightly issued fresh
show cause notices dated 13.11.2020 in
FOC No.7, 8, 9, 13 and 14 of 2006-07.
30. ANSWER TO POINT No.4: Whether the first
survey carried out in pursuance of the orders in
Crl.Petitions No.1852-57 of 2012, indicating
that there is no encroachment of forest land,
would enure to the benefit of the Petitioners
requiring the Writ Petitions to be allowed?
30.1. Some of the contentions relating to this point
have been considered in answer to point No.3
above. Suffice it to say that in the first survey,
which had been carried out, the petitioners had
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participated, and in the second survey, which
had been carried out, the petitioners had
chosen not to participate, as indicated supra.
30.2. In my considered opinion, the Petitioners
cannot choose not to participate when it had
been pointed out that there was an error in the
earlier survey on account of the earlier survey
having been done of the Survey Numbers and
not as per the boundaries of the notification of
the year 1921. The First Survey, which had
been carried out, was contrary to the orders
passed by this court; it would be for the
Principal Chief Conservator of Forests and the
Principal Secretary, Revenue Department to
ascertain if there was any mischief in the
carrying out of such a survey with reference to
the survey numbers rather than the boundaries
of the notification of the year 1921 and take
necessary action against the errant officials.
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30.3. Respondent-Forest Department was well within
its authority to conduct a fresh survey when
such an error was found, more so, when in
furtherance of the orders passed in Criminal
Petition No.1852 to 1857 of 2012, the Forest
Department was granted liberty to carry out a
survey of the land as per the notification of the
year 1921, in the presence of the petitioners.
The liberty which has been granted by this
court in its order passed in criminal petition
No.1852 to 1857 of 2012 did not come to an
end once the first survey was carried out. When
the aforestated error was found, it was required
for any responsible officer of the Forest
Department, who is obliged and duty-bound to
protect all forest lands, to conduct a fresh
survey as per the notification of the year 1921.
It is if the survey report of the survey numbers
were to be accepted by the forest department
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that the officers could have been said to have
abdicated their duties. An action taken to
protect forest land cannot be said to be outside
the powers of the Officials of the Forest
Department, the same being to correct the
mistake committed by the surveyor carrying
out the survey activity without reference to
change in the survey numbers and or the
boundaries of the notification of the year 1921.
30.4. As such I answer point number 4 by
holding that when a survey was carried
out in pursuance of the orders in criminal
petition No. 1852 to 1857 of 2012
indicating that there is no encroachment
of forest land, the same would not enure
to the benefit of the petitioners if the
survey was not properly carried out. A
subsequent survey after the issuance of
notice to the petitioners carried out as per
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the boundaries of the notification of the
year 1921 is perfectly valid and binding on
the petitioners, more so when they chose
not to particiapate in the said arrvey, the
Petitioners or anyone claiming through or
under them cannot seek to take advantage
of their own wrongs by not participating in
the survey despite notice having been
issued in that regard.
31. ANSWER TO POINT No.5: Whether the filing of
the civil suit by the Forest Department and the
orders passed therein would disentitle the Forest
Department from initiating proceedings under
Section 64A of the Karnataka Forest Act, 1963?
31.1. The submission of Sri Chandan, learned counsel
for the petitioners, is that a suit having been
filed by the Forest Department, the Forest
Department failed in the same, and the matter
is now pending before the first appellate court,
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proceeding under section 64A of the KFA, 1963
could not have been initiated.
31.2. Per contra, the submission of Kiran Ron,
learned the Additional Advocate General, is that
the proceedings in OS No.1424 of 2006 were
not required to be initiated. They have been so
initiated on ill-advise. The jurisdiction of the
Civil Court is excluded insofar as Forest lands
are concerned. A survey has been conducted on
28-01-2015 and 29-01-2015 in pursuance of
the Order dated 13.06.2012, passed in Criminal
Petition No.1852-1857 of 2012, the Assistant
Conservator of Forest having received the said
survey report on 12.06.2015 being of the
opinion that the said survey was not conducted
in accordance with the gazette notification
dated 8-01-1921, had requested the Range
Forest Officer, the Assistant Conservator Forest
and the Deputy Conservator of Forest for a
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fresh survey in terms of the notification dated
8.01.1921. Thereafter on 10-07-2017, notice
was issued by the ADLR to the petitioners for
conducting a joint survey on 25-07-2017, the
petitioners refused to receive the notice and as
such, a survey was carried out. Though
petitioner No. 3 was present at the time of the
survey, he refused to sign the mahazar. It is in
furtherance of the same that the survey report
has been submitted by the Assistant
Conservator of Forest on 16-09-2017 to the
Deputy Conservator of Forest. Thus, he submits
that this is a survey which has not been carried
out unilaterally by the Forest Department but
through the ADLR and the officials of the
respondent. Notice having been issued to the
petitioners, the petitioners had not participated
in the said survey. It is on that basis that
notices had been issued under section 64A on
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account of encroachment being found during
the course of the said survey.
31.3. His submission, therefore, is that irrespective of
a civil suit having been filed by the Forest
Department, the statutory remedies available
to the Forest Department could have been and
have in fact been invoked. It is in the
background of the aforesaid submission that
this issue would have to be answered.
31.4. Though it is not in dispute that a civil suit in OS
No.1424/2006 has been filed by the Forest
Department, the said suit is only in respect of a
portion of the subject property. The title, as
observed supra, in that suit and in the present
proceedings can be traced to either the grant
made in the year 1932 in respect of survey
number 69 or the grant made in respect of
survey number 68 made in the year 1945.
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31.5. Irrespective of the title to the property what
would have to be looked into in these kind of
matters relating the Forest lands, is whether
the land claimed by a private party like the
petitioners comes within the boundaries of the
Forest notification, if it does, then it would be a
forest land, and the Petitioners or anyone
claiming through or under them would not have
any defence from being evicted in order to clear
the encroachment over forest land.
31.6. The filing of the suit, though only reflects the
ineptitude on part of the forest officials who had
then filed the suit, would not deprive the forest
department from exercising its powers in
accordance with law. It would, however, be for
the Principal Chief Conservator of Forests to
take such action as may be permissible, in
accordance with law, against such delinquent
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officials, who had, instead of taking up
proceedings by exercising powers in accordance
with the applicable law, filed a suit and
subsequently an Appeal which is still pending.
31.7. As such, I answer point number 5 by
holding that proceeding under Section 64A
of the Karnataka Forest Act 1963 can be
initiated and continued irrespective of the
Forest Department having filed a civil suit
relating to the title of the property, since
what is required to be decided is whether
the property falls within the boundaries of
the notification of the year 2021.
32. ANSWER TO POINT No.6: Can the government
after notifying a land to be forest land under
Mysore Forest Regulations 1990 vide
notification 08.01.2021 grant any land to
defence personnel or otherwise and what is the
effect thereof?
32.1. The submission of Sri. K.Chandan, learned
counsel for the petitioners, is that even if the
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land had been notified as a forest land vide
notification date 8.01.1921, the land in survey
number 69 had been granted to Sri.Manik Raj,
a defence personnel in the year 1932 and the
land in survey no. 68 was granted to
Muniyappa Devanahalli in the year 1945. It is in
that background that Section 20 of the KFR
1900 has been brought into service to contend
that the grantees Manik Raj and Muniyappa
Devanahalli acquired ownership rights in terms
of the grant, and there is no prohibition in
terms of Section 20 in relation thereto.
32.2. Reliance is also placed on Rule 99 of the Mysore
Land Revenue Rules and Section 187 of the
Mysore Land Revenue Code, which have been
reproduced hereinabove. On that basis, it is
contended that if a sale has been executed by
an officer of the State representing the State,
more particularly when the auction has been
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conducted, on confirmation of the sale, the
purchaser is required to be put in possession by
the State and a certificate of purchase is
required to be issued.
32.3. Reference is also made to Section 24G, 24GG,
24H, 73D of the KFA 1963 and Rule 41(2) of
the KFR 1969 and Section 2(2) of the FCA
1980, on which basis it is submitted that it is
only after the FCA 1980 came into force that
the restriction in respect of forest land came to
be introduced and therefore the grant made in
the year 1932 and 1945 would be outside the
mischief of the FCA 1980.
32.4. Per contra, the submission of Sri.Kiran Ron,
learned Additional Advocate General is that
once a land has been declared as forest land, it
will continue to forest land and by relying on
the decision of the Hob’ble Apex Court in
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Godaverman’s case, his submission is that no
defence is available to any person who is found
to be in occupation of forest land once the said
land is admitted/found to be forest land. It is in
the background of the aforesaid submission
that this issue would have to be answered.
32.5. There cannot be any dispute as regards 24G,
which provides that clearance of any land for
cultivation is prohibited in forest land. 24GG,
which prohibits the occupation of forest land for
any purpose. Section 24H, prohibits damaging,
altering or removing any cairn, wall, ditch,
embankment, fence, hedge, or railing in forest
land, etc. There can be no dispute as regards
Section 73D, which provides for a penalty for
any person altering, destroying or defacing any
boundary mark of forest land. All these
provisions would be attracted in the present
case since, as admitted by the Petitioners
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themselves, they have formed a layout and are
selling the same to third parties, some of whom
are putting up construction of houses on those
plots. Once the land has been found to be
within the boundaries of the notification of the
year 1921, none of these actions could have
been undertaken by the petitioners or anyone
claiming through or under them. The petitioners
took this risk knowing fully well that the Forest
Department had laid a claim over this land, in
fact the first suit was filed by one of the
petitioners contending that there is interference
with his possession by the Forest Department,
Petitioner No. 2-Mohammad Sanaullah, had
filed a suit in O.S. No. 600/1981 seeking a
permanent injunction against the Forest
Department, restraining the Forest Department
from interfering with the peaceful possession of
Petitioner No.2 in Survey No. 69/2. The said
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suit came to be dismissed on 13.12.1985 with
costs.
32.6. Section 2(2) of the Forest Conservation Act
which came into effect from the year 1980 has
imposed a restriction on the de-reservation of
forest which came into effect in the year 1980
in terms of Subsection (2) of Section 2 thereof.
32.7. Even according to the learned counsel of the
Petitioners, de-reservation can only be made
with the prior approval of the Central
government. This is for the simple reason that
the lands in question continue to be part of the
Notification of the year 1921, which has not
been challenged. No de-reservation having
been made and the hon’ble Apex Court in
Godavarman‘s case having prohibited any
such dereservation, the petitioners cannot now
claim that there is any such dereservation
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without placing any document in regard thereto
on record.
32.8. In that view of the matter there could not be
any grant made of the subject land, once it was
notified to be forest land, there cannot be an
estoppel against statute, there being a clear bar
under the statute for using a forest land for non
forestry purpose, the petitioners are fully aware
of such embargo and the claim of the Forest
department, this I say so for the simple reason
that no action had been taken to develop the
property or the like until the turn of the
century, by which time action had been taken
by the forest department, and the dispute was
pending before the court, the first suit having
been filed by Petitioner No. 2-Mohammad
Sanaullah, in O.S. No. 600/1981 seeking a
permanent injunction against the Forest
Department, restraining the Forest Department
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from interfering with the peaceful possession of
Petitioner No.2 in Survey No. 69/2. The
execution of the joint development agreement,
obtaining of plan sanction, and agreements of
sale having been entered into in that regard are
all after the forest department had initiated
action and the suit had been filed. Hence, all
these acts having been committed by the
Petitioners or by persons claiming through or
under them, would not entitle them to any
equitable consideration. Insofar as third-party
purchasers are concerned, they would always
have recourse against the petitioners.
32.9. Thus, I answer point number 6 by holding
that after the Government notifying the
land to be forest land under the Mysore
Forest Regulation 1990 vide notification
dated 8-01-1921, the alleged grant of land
in survey number 69 in the year 1932 and
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the grant of land in survey number 68 in
the year 1945 is contrary and violative of
the Mysore Forest Regulation 1900
(though no such grant order/s have been
placed on record), the further actions
taken in entering into a joint Development
Agreement, formation of a Lay out, sale
thereof and proposed construction houses
is violative of the Karnataka Forest Rules,
1969 and Forest (Conservation) Act 1980.
33. ANSWER TO POINT No. 7: Whether there is any
delay and if there is delay, would it disentitle
the Forest Department from taking action under
Section 64A?
33.1. Much has been argued by Sri.Chandan, learned
counsel for the petitioners as regards the
alleged delay. His submissions have been
detailed out hereinabove. The sum and
substance of his submission is that the grant
having been made in the year 1932 in respect
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of survey number 69, in the year 1945 in
respect of survey number 68, for the first time
interference was sought to be made by the
Forest department in the year 1979, as regards
which the first suit having been filed by
Petitioner No. 2-Mohammad Sanaullah, in O.S.
No. 600/1981 seeking a permanent injunction
against the Forest Department, restraining the
Forest Department from interfering with the
peaceful possession of Petitioner No.2 in Survey
No. 69/2. Thereafter, the forest department
filed a suit in OS No.1424/2006 in the year
2006. Simultaneously, FOC proceedings were
initiated in the year 2006-07. The suit in OS
No. 1424 of 2006 came to be dismissed on
8.03.2012, as regards which RFA 1287 of 2012
has been filed, which also came to be
dismissed. An appeal having been filed before
the Hon’ble Supreme Court in Civil Appeal No.
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5801 of 2022, the said appeal had been
remanded to the trial Court vide order dated
20.09.2022. The trial court once again
dismissed the suit on 15.12.2023, which is
pending in appeal in RFA No. 160 of 2024.
33.2. In reply, Sri Kiran Ron, Additional Advocate
General would submit that once a land has
been declared to be Forest land, it will always
continue to be Forest land and any
encroachment thereof in violation of a
notification would provide a continuing cause of
action to the Forest department to initiate
action. It is on the basis of the above
submission that this point would have to be
answered.
33.3. It is not in dispute that the Forest Department
sought to take action in the year 1979, as
regards which the first suit having been filed by
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Petitioner No. 2-Mohammad Sanaullah, in O.S.
No. 600/1981 seeking a permanent injunction
against the Forest Department, restraining the
Forest Department from interfering with the
peaceful possession of Petitioner No.2 in Survey
No. 69/2, which came to be dismissed, it is on
an appeal being filed that the said appeal was
allowed, challenging which the Forest
Department filed the second Appeal, which was
withdrawn to file a comprehensive suit which
was so done in the year 2006 as indicated
supra, simultaneously the FOC proceeding in
FOC 7, 8, 9, 13 and 14 of 2006-07, were taken
up which were challenged after 5 years by the
Petitioners in Criminal Petitions No. 1852 to
1857 of 2012, the said criminal petition came to
be allowed, reserving liberty to the Forest
Department to conduct a joint survey as per
the notification of the year 1921.
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33.4. These facts would indicate that at best till the
year 1981 it could be said that no action had
been taken by the Forest Department in respect
of the aforesaid lands. From 1981, the parties
have been battling each other in one fora or the
other. Thus, at this stage, having initiated
action more than 40 years ago, it cannot be
said that there is a delay on the part of the
forest department or that no such action can be
taken. All the citations relied upon by the
learned counsel for the Petitioners would not
therefore apply the litigation going on the in
present matter for more that 40 years.
33.5. On facts, it is clear that the lands are within the
boundaries of the notification of the year 1921.
33.6. Thus, I answer point number 7 by holding
that there is no gross delay on the part of
the Forest department; the proceedings
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pending for more that 40 years, the aspect
of alleged delay does not arise.
34. General Directions/recommendations:
34.1. Forests are more than just collections of trees;
they are complex, dynamic ecosystems that
provide essential ecological services and
significant economic and social benefits. From a
global perspective, forests are considered
“carbon sinks,” absorbing vast amounts of
carbon dioxide and other greenhouse gases,
which helps to mitigate climate change. The
loss of these forests, however, turns them from
carbon sinks into carbon sources, contributing
to rising global temperatures and more
frequent extreme weather events.
34.2. The ecological health of forests is critical for the
stability of the entire planet and for all living
things more particularly the Human Race to
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survive. They harbour a vast majority of the
world’s land-based biodiversity, providing
homes for countless species. Deforestation
leads to habitat loss, forcing species into
fragmented areas where they are more
vulnerable to hunting, poaching, and extinction.
Furthermore, forests play a vital role in local
water cycles, helping to generate rainfall, and
their removal can disrupt precipitation and river
flow patterns, leading to soil erosion. This
erosion can, in turn, degrade arable land,
compelling agricultural producers to clear more
forest land and perpetuate a destructive cycle,
which also results in global warming, change in
seasons, net result of which is the suffering of
all living organisms, more so the human
species. In Cities like Bangalore it can result in
reduced water table, increased pollution, dust
and the like which are not conducive, there is
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therefore a need for maintaining green spaces
as lung spaces to have better environmental
balance in cities
34.3. Forests and lung spaces in and around a city
offers valuable respite from nature’s vagaries,
ground water protection, protection from
pollution etc.,
34.4. Despite their importance, forests face constant
threats from deforestation and diversion for
non-forest purposes. While laws like the Forest
Conservation Act of 1980 mandate that any
diversion of forest land for non-forest use
requires prior approval from the central
government, illegal diversion still occurs in
some areas, leading to degradation and loss of
forest cover. The cumulative effect of these
activities is not only a loss of forest land but a
profound destabilisation of the entire ecosystem
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that is vital for the survival of wildlife, flora, and
the communities that depend on them, which
today also includes humans.
34.5. The current case demonstrates that the
traditional, paper-based, and siloed
administrative systems are inadequate to
resolve complex land title conflicts. While
Karnataka has made significant strides in land
records modernisation, the current situation
proves that digitisation alone is insufficient. The
critical failure is the lack of a single, unified
source of truth.
34.6. The Digital India Land Records Modernisation
Programme (DILRMP) has been a significant
initiative, succeeding in computerising land
records and integrating Sub-Registrar Offices
with land records. Karnataka’s Bhoomi portal,
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for instance, has enabled online access to
Records of Rights (RTCs) and mutation details.
34.7. The current dispute demonstrates the
program’s fundamental limitation: while records
are digitised, they are not necessarily
integrated. The Tahsildar’s 2015 survey, which
failed to identify the land as forest property,
was likely based solely on the Revenue
Department’s records, which had not been
reconciled with the Forest Department’s
historical gazette notifications. This lack of
interoperability between different departmental
databases means that a seemingly “clean” title
in one system (e.g., Revenue) can conceal a
fatal legal defect in another system (e.g.,
Forest). The problem is not the absence of
digital records but the absence of a single,
authoritative, and consolidated database that
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all government departments must mandatorily
reference.
34.8. The solution lies in a radical transformation
from siloed digitisation to a unified, integrated
technological platform that serves as a single
source of verifiable and credentialised truth for
all land-related information.
34.9. Geographic Information System (GIS)-
based platform: The foundational component
must be a Geographic Information System
(GIS)-based platform. This system would
function as a digital, unified, and immutable
map of all land parcels in the state. Leveraging
high-resolution satellite imagery from agencies
like the Forest Survey of India (FSI) and the
Indian Space Research Organisation (ISRO),
this platform is digitally demarcating and geo-
tagging all notified forest boundaries as per
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historical gazette notifications, as also
conducting forest cover mapping using remote
sensing data to monitor the status of forests at
the state level. This unified map would then
have to be integrated with all other land-related
data, including the Revenue Department’s
cadastral maps, the Urban Planning Authority’s
master plans, and all other public and private
land records. The platform is assigning a
Unique Land Parcel Identification Number
(ULPIN), or “Bhu-Aadhar,” to every land parcel,
linking all textual, spatial, and legal records to a
single, immutable digital identity, which is to be
incorporated in all land records, which are
required to be QR code enabled as also date
and time stampted in order to enable public
verification.
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34.10. Automated System: An automated system
must be built on top of the integrated
geospatial platform to streamline all land-
related applications. This system would ensure
that no land-related action is taken without
mandatory, real-time verification against the
unified database. For instance, the Deputy
Commissioner and planning authorities like
BIAPPA would have to be legally barred from
processing any land conversion or layout
sanction application until the automated system
performs a check against the integrated forest
map.
34.11. Conflict Alert: If a parcel falls within a notified
forest boundary, the system must automatically
reject the application and generate a “Conflict
Alert” for all concerned departments. Similarly,
the Sub-Registrar’s Office must be linked to this
system to prevent the registration of any sale
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deed for a parcel with a “Conflict Alert,” as the
existence of litigation or dispute over a property
makes it difficult to legally transfer. The online
portal for building plan approvals would also be
required to integrate with this system to
automatically verify that the land is legally
converted and free from disputes.
34.12. Publicly Accessible Portal: To empower
citizens and foster public trust, the unified
platform must include a publicly accessible
portal. Through this portal, any individual,
including prospective buyers, can enter a
ULPIN, a survey number or such other
identifiable details to view a comprehensive,
colour-coded report of the land parcel. This
report would display the land-use classification,
ownership history (mutation records), details of
any litigation or encumbrances, and a clear,
explicit warning if the land falls within a notified
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forest boundary and or reserved for any public
purpose or a no development zone. This
transparency mechanism would serve as a
powerful deterrent to fraud, enabling citizens to
perform their own due diligence and effectively
acting as a “fraud alert” for every future buyer.
By allowing the public to easily verify land
status, it would address the core issue of a lack
of information, which results in misinformation
that leads to fraudulent transactions.
34.13. Reconciliation of Historical Records: The
Department of Land and Revenue is directed to
immediately undertake a time-bound, state-
wide project to reconcile all historical records,
including Record of Tenancy and Crops, Form
10, Form 11, Mutation Register, Grant
registers, Saguvali Chits, Kethwar registers,
Darkast registers, Conversion orders, and any
other land revenue records which may be
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maintained as regards that particular land or
any other register where the details of that
particular property are available, with the
digitised forest and revenue maps. The
outcome of this reconciliation must be a single,
authenticated, and immutable record for each
land parcel. The power to rectify errors in
revenue records is limited to clerical and
typographical mistakes and cannot be used to
alter fundamental land rights or ownership
without a proper legal process.
34.14. ULPIN Implementation: The department
shall ensure the mandatory adoption and use of
the Unique Land Parcel Identification Number
(ULPIN) for all land parcels. The ULPIN shall
serve as the primary key for linking all textual,
spatial, and legal data for each parcel, ensuring
data integrity and preventing future
discrepancies.
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34.15. Establishment of an Inter-Departmental
Land Dispute Resolution Cell (IDLDRC): A
dedicated, high-level cell, comprising
representatives from the Revenue Department,
the Forest Department, and Urban Planning
Authorities, shall be established under the
direct supervision of the Chief Secretary. This
cell shall be the sole body authorised to
mediate and issue binding, inter-departmental
rectification orders for conflicting records. The
Regional Commissioners shall head this cell, as
they are tasked with coordinating the work of
all departments at the regional level to resolve
inter-departmental problems.
34.16. Digital Demarcation of Boundaries: The
Forest Department is directed to complete the
mandatory geo-tagging and digital demarcation
of all notified forest land boundaries, based on
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historical gazette notifications. This geo-
referenced data must be integrated into the
central geospatial platform established under
these directions. The Forest Survey of India,
through its use of remote sensing and satellite
data, can create digital maps of forest
boundaries with a high degree of precision,
which is essential for this task.
34.17. Mandatory Geo-Verification: The department
shall be legally barred from issuing any notice
or initiating prosecution for alleged
encroachments without first verifying the land
parcel’s location against the unified, geo-
referenced database. Once the system is set up
all future notices must explicitly include the
land parcel’s ULPIN and a geo-referenced map.
The Hon’ble Supreme Court has also noted that
the only defense open to an encroacher is to
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prove that their land does not fall within the
notified forest boundaries.
34.18. Alerts: This court also recognises that there
may be cases where diversion of forest land is
made without seeking for necessary
permissions or in excess of permissions
granted, in such situations, an alert mechanism
to be incorporated in the digital maps, to
monitor any changes, which alert would be sent
to all the concerned officers of the Forest and
Revenue department to enable them to take
immediate action. The obligation to take action
always resting with such officials, the Alert
system will aid in the discharge of their
obligations/duties.
34.19. Mandatory Automated Conflict Checks: All
urban planning authorities and local bodies,
including BIAPPA and the Deputy
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Commissioner, shall be under a legal obligation
to perform a mandatory automated conflict
check against the unified land database before
sanctioning any layout plan, land conversion, or
building permit. Any application related to a
land parcel identified as forest land shall be
automatically and immediately rejected by the
system.
34.20. Accountability of Officials: Any official who
issues any order/licence/permission/no-
objection, like a land conversion order or a plan
sanction, etc., on a land parcel with a
conflicting title, after the implementation of the
automated verification system, shall be held
personally accountable for his actions.
34.21. Use of Geo-Referenced Data as Primary
Evidence: The Department of Land Resources
is to link e-Courts with land records and
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registration databases, providing courts with
firsthand, substantive evidence, including geo-
referenced maps and digital records from the
unified geospatial platform.
34.22. Green Watch Platform: A unified mobile app
and web portal where any citizen can report an
environmental violation with geotagged photos,
videos, and documents.
34.23. Aforestation and Carbon Credits: The
Government will have to consider the issuance
of Carbon credits for persons or organisations
which contribute to afforestation and other
projects with measurable conservation
outcomes (e.g., restoring a wetland, reforesting
a degraded corridor segment, achieving a
verifiable positive outcome), which would
create a direct financial flow from development
to conservation.
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34.24. High-Level Committee: To ensure these
directions are not merely pronouncements but
are effectively implemented, a robust
monitoring mechanism is essential. A joint,
high-level committee shall be convened,
comprising representatives from the Chief
Secretary’s office, and the heads of the Land
and Revenue, Forest, and Urban Development
Departments, the Law Department, a law
officer like an Additional Advocate General and
such other departments that the Chief
Secretary, in her wisdom, may decide. The
HLC’s mandate will be to oversee the phased
implementation of these directions, resolve
inter-departmental conflicts as they arise, and
provide a quarterly compliance report to the
court. Such a committee, with its multi-sectoral
expertise, can bridge the gap between
departments and prevent the “abdication of
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responsibilities” that has historically plagued
environmental administration.
34.25. The implementation of these directions is to be
done in a time-bound, phase-wise manner:
34.26. Phase I (Immediate – 3 months): The
IDLDRC and HLC are to be established.
Mandatory data sharing protocols for all new
land transactions must be put into place,
ensuring no new contradictory records are
created. These protocols would function like
“data contracts,” ensuring a common
understanding and quality of data exchanged
between departments. Blockchain methodology
could also be considered to be used.
34.27. Phase II (Mid-term – 3 months to 1 year):
The unified geospatial platform and the
automated verification system must be
completed and made operational. The ULPIN
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shall be implemented for all new land parcels,
and a public-facing portal shall be launched to
enable transparency and citizen due diligence.
34.28. Phase III (Long-term – 1-2 years): The full
integration of all legacy records will be
completed. A significant number of pending
disputes will be resolved through the IDLDRC
and the system will achieve its full potential for
transparent, secure, and definitive land
governance.
34.29. The recommendations and suggestions above
are based on the consideration of a few of the
aspects which have arisen in the matter, the
HLC will be free to consider any other aspect/s
relevant to formulate a comprehensive
methodology for bringing about transparency
and efficiency while protecting the most
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revered and vulnerable forest areas as also
other no development zones in the state.
35. ANSWER TO POINT NO.8: What Order?
35.1. In view of my findings in respect to point Nos.1
to 7, I am of the considered opinion that the writ
petitions are required to be dismissed. Hence, I
pass the following:
ORDER
i. Writ Petitions are dismissed.
ii. The petitioners, within 15 days of the
receipt of the certified copy of this order,
are permitted to place on record before
the respondents such mitigating factors
as are available for the purposes of
consideration of the time for eviction of
the petitioners and anyone claiming
through or under them from the lands
coming with in the boundaries of the
Gazette Notification No.R7807-FT-126-20-
8, dated 08.01.1921.
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iii. Respondents are directed to consider the
said mitigating factors and pass such
orders as required within 30 days
thereafter.
iv. Respondents are permitted to take such
action as is permissible under the
applicable law.
v. Though the above matter is disposed for
reporting progress in compliance with the
general directions above, relist on
27.10.2025. Learned AGA is directed to
communicate the above order to the Chief
Secretary to the Government of
Karnataka.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
Ln/-