Karnataka High Court
Babajan vs Tahsildar on 18 February, 2020
Author: B.Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.17936/2014(KLR-RR/SUR)
BETWEEN:
1. BABAJAN,
S/O HAYATHSAB
AGE:65 YEARS,
R/O TIPPUNAGAR,
SHIMOGA-577401
2. MANJAPPA,
S/O KOLLA NAIK,
AGE:64 YEARS,
R/O KASABA HOBLI,
SHETTIHALLI VILLAGE, ARANABAIL,
DISTRICT-SHIMOGA-577401.
BOTH ARE R/BY THEIR POWER OF
ATTORNEY HOLDER
SRI SHIVARAME GOWDA,
S/O:PUTTASWAMY GOWDA,
AGE:62 YEARS,
R/O LDHAHALLI, KANATHI POST,
CHIKMAGALUR-577111.
...PETITIONERS
(BY SRI D.R. RAVISHANKAR, ADVOCATE FOR
SRI C. N. RAJU, ADVOCATE)
2
AND:
1. TAHSILDAR
SHIMOGA TALUK,
SHIMOGA DISTRICT-577401.
2. THE DEPUTY CONSERVATOR OF FOREST,
WILD LIFE DIVISION,
SHIMOGA DISTRICT,
SHIMOGA-577401.
...RESPONDENTS
(BY SRI Y.D. HARSHA, AGA)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 12.2.2014 PASSED IN CASE No.LND(1)CR
23/2008-09 BY THE 1ST RESPONDENT, MARKED AS ANNEXURE-
M TO THE WRIT PETITION ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP FOR FURTHER DICTATION THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
This is the 4th round litigation by the petitioners. In the present writ petition, the petitioners have sought for a writ of certiorari to quash the order dated 12.2.2014 made in Case No.LND(1)CR 23/2008-09 by the 1st respondent - Tahsildar and issue a writ of mandamus directing the respondents to mutate the name of the 1st petitioner in 3 respect of Sy.No.16/2 measuring 2 acres and the name of the 2nd petitioner in respect of Sy.No.16/1 measuring 1 acre 32 guntas, both situated Shettihalli village, Kasaba hobli, Shimoga taluk and district, in owner's and cultivator's columns.
2. It is the case of the petitioners that the 1st petitioner was granted 2 acres of land in Sy.No.16/2 situated at Shettihalli village, Kasaba hobi, Shimoga taluk and district during the year 1977-78. The Record of Rights have been mutated in the name of the 1st petitioner from the date of the grant till it was cancelled by the 2nd respondent on 6.8.2008. Sy.No.16/1 measuring 1 acre 32 guntas situated at Shettihalli village, Kasaba hobli, Shimoga taluk and district was granted to one Yusuf Khan and the 2nd petitioner has purchased the land from the said Yusuf Khan. The Record of Rights have been mutated in the name of the 2nd petitioner from the date of the grant till it was cancelled by the 2nd respondent on 5.8.2008. 4
3. It is further case of the petitioners that in both the lands, the grantees planted totally 316 teak trees and there is no dispute about the fact of standing teak trees in the said land. When the petitioners sought for permission to cut the trees, it was declined and series of litigations ensued before this Court. The petitioners filed Writ Petition No.44573/2004, which came to be dismissed on 27.7.2006. That was the subject matter of Writ Appeal No.1422/2006. The Division Bench of this Court by the Judgment dated 4.6.2007 allowed the writ appeal and quashed the order passed by the learned Single Judge and remanded the matter to the Deputy Conservator of Forests to dispose off the same within three months from the date of receipt of copy of the order.
4. After remand by this Court to consider the application to cut the trees, the Tahsildar by the orders dated 5.8.2008 and 6.8.2008 cancelled the very grant 5 itself, exercising the powers under Rules 9 and 25 of the Land Grant Rules. The said order passed by the Tahasildar was the subject matter of W.P. No.11050/2008. The learned Single Judge after hearing both the parties by the order dated 26.10.2009 allowed the writ petition and quashed the orders dated 5.8.2008 and 6.8.2008 passed by the Tahasidlar. The said order passed by the learned Single Judge of this Court has reached finality and not challenged by the State. Inspite of the order passed by the learned Single Judge quashing the order of cancellation of grant, still the name of the Government continued in the Record of Rights for the years 2008-09 and 2009-10 as per Annexure- K series, wherein at Column Nos.9 and 12, it is shown as 'Forest'.
5. Therefore, the petitioners were constrained to file Writ Petition Nos.39093-94/2010 before the learned Single Judge. The learned Single Judge after hearing both the parties allowed the said writ petitions and directed the 6 respondent - Tahsildar to consider the request of the petitioners to mutate their names in respect of the lands in question in accordance with law as expeditiously as possible and in any case within an outer limit of three months from the date of issuance of the certified copy of the order. The said order passed by the learned Single Judge directing the authorities to consider the case of the petitioners to enter their names in the Record of Rights, has also reached finality. Thereafter, the Tahsildar by the impugned order dated 12.2.2014 confirmed the cancellation order dated 6.8.2008 though the said cancellation order has already been set aside by this Court on 26.10.2009 in Writ Petition No.11050/2008. Hence the present writ petition is filed for the relief sought for.
6. The State Government filed statement of objections. The main grievance of the State Government is that the very writ petition filed by the petitioners challenging the order passed by the Tahasildar canceling 7 the grant, is not maintainable as the petitioners have alternative remedy of appeal before the appellate authority. It is further contended that the 1st respondent before passing the order has conducted the spot inspection and after looking into the documents, cancelled the grant order of the petitioners. The only intention of the petitioners is to grab the standing teak trees which are planted by the Forest Department. The Respondent NO.2 is not aware that the petitioners are the owners and are in possession, cultivation and enjoyment of the land measuring 2 acres in Sy.No.16/1 and 1 acre 32 guntas in Sy. No.16/2 of Shettihalli village, Kasba Hobli, Shivamogga taluk. The respondents are also not aware that the property measuring 1 acre 32 guntas in Sy.No.16/2 was purchased by the petitioner No.2 from one Yusuf Khan. It is further contended that Sy.Nos.16/1 and 16/2 of Shettihalli village, Kasaba hobli, Shimoga taluk are the forest lands and the RTC and khatha stand in the name of the Forest 8 Department. As such, there is no vesting of forest land with the Revenue Department. The Revenue authorities have not maintained any portion of the land and Saguvali chit issued by the Revenue Department is null and void.
7. According to the respondents, Sy.Nos.16/1 and 16/2 of Shettihalli village, Kasaba hobli, Shivamogga taluk are all notified as forest lands and the Revenue Department has not poded the land and the boundaries are also not fixed and therefore the entire land is having full of forest growth and the same is being maintained and safeguarded by the Forest Department. As such, no agricultural operation can be done in the said area and the Forest Department has also written several letters to the Revenue Department to survey the land in Sy.Nos.16/1 and 16/2 for actual measurement and to fix the boundaries.
8. It is further contended that the Revenue Authorities cannot grant and regularize any portion of the land in 9 Sy.Nos.16/1 and 16/2 of Shettihalli village. As such, there is violation of the provisions of Section 24 of the Karnataka Forest Act, 1963 and Sections 2 and 3 of Forest (Conservation) Act, 1980. It is further contended that the property is a land in Sy.No.16 of Shettihalli village, Shivamogga taluk consisting of more than 350 teak trees aged about 82 to 85 years including Sy.Nos.16/1 and 16/2. The Forest Department has researched the age of the trees from the Indian Council of Forestry and Research and Education. The report says that the age of the trees is more than 82 to 85 years. The teak trees in the property are worth about more than crores and the teak trees are planted and cultivated by the Forest Department and it is in its care and custody and the Forest Department is safeguarding the said land. Therefore, learned AGA sought to dismiss the writ petition.
9. Learned AGA has filed additional statement of objections on 14.02.2020, wherein it is contended that 10 Sy.No.16/1, measuring 1 acre 32 guntas and Sy.No.16/2 measuring 2 acres situated at Shetthalli village, Kasaba Hobli, Shivamogga Taluk, Shivamogga District, is originally a forest land declared as State Forest by the Government of Mysore vide its notification No.GL.23538-R 3737 dated June 1895., wherein, the Government of Mysore was pleased to declare 36 sq. miles distance around 26 miles, the area covering Shetthalli upto Shivamogga Shetthalli road which it meets at a point of a Farlong from Gundakkallu bandh of Agasavalli Inam boundary, which is produced herewith and marked as Annexure-R1. The said area is declared as State Forest way back in June, 1895. Further, the Government of Karnataka by its notification dated 23.11.1974 has declared the said forest area as Setthalli Wild Life Sanctuary as per Annexures- R1 and R2. It is stated that respondent No.2 conducted detail survey of Sy.Nos.16/1 and 16/2 measuring 2 acres and 1.32 acres wherein, it is found that in the said lands there are thick forest of Teak, Beete and Nandi etc., 11 trees which are aged around 60 years. A detailed list of enumeration of 472 trees was prepared in the said lands as per Annexures-R3 and R4. It is further stated that Annexure-R5 is the photograph of the said lands and Annexure-R6 is the copy of the google map of the Sy.Nos16/1 and 16/2. It is also stated that the Institute of Wood Science and Technology vide its report dated 28.12.2007 has stated that the trees standing in the petition schedule lands are aged about 50-67 years as per Annexure-R7. It is stated that suit filed by the petitioners for permanent injunction against the Forest Department was decreed vide order dated 19.01.2013 in respect of petition schedule land. The State Government has preferred R.A.No.138/2013, which was dismissed on 11.12.2014. Against the said order passed by the Court below, respondent preferred RSA.No.1477/2016 which is pending for adjudication. It is further contended that according to the provisions of Mysuru Forest Regulation Act, 12 1900, then in force, the said lands in question before utilizing them for any other purpose other than forest under the said Act, the same has to be de-notified with the prior approval of Central Government. Further, as per the Forest Conservation Act, 1980, no forest can be released / diverted for any non forestry purpose without prior approval from the Government of India. Hence, the Tahsildar rightly has set aside the grant and directed to show the name of the Forest Department in the revenue records. Therefore, he sought for dismissal of the petition.
10. I have heard the learned counsel for the parties.
11. Sri D.R. Ravishankar, learned counsel for the petitioners contended with vehemence that the impugned order passed by the Tahasildar rejecting to enter the name of the petitioners in the RTC and mutation, is erroneous and contrary to the material on record. He would further contend that the cancellation orders dated 5.8.2008 and 13 6.8.2008 (Annexures-G and H) passed by the Tahasildar are the subject matter of Writ Petition NO.11050/2008 and the learned Single Judge of this Court by the order dated 26.10.2009 allowed the said writ petition and quashed the 'orders of cancellation of grant' dated 5.8.208 and 6.8.2008 passed by the Tahasildar. The said order passed by the learned Single Judge has reached finality. He would further contend that the present respondents are also parties in the said writ petition.
12. Learned counsel for the petitioner would further contend that inspite of allowing W.P. No.11050/2008 and quashing the 'orders of cancellation of grant' dated 5.8.2008 and 6.8.2008 passed by the Tahasildar, still the name of the Government continued in the Record of Rights for the years 2008-09 and 2009-10 as per Annexure-K series, wherein at column Nos.9 and 12, it is shown as 'Forest'. Therefore, the petitioners approached this Court in W.P. Nos.39093-94 of 2010. This Court allowed the said 14 writ petitions directing the Tahasildar to consider the petitioners' request for mutation entries in their names in respect of the lands in question in accordance with law and as expeditiously as possible and in any case within an outer limit of three months from the date of issuance of the certified copy of the order.
13. In view of the above, learned counsel for the petitioners would contend that the Tahasildar ought to have considered to enter the names of the petitioners in the RTC and mutation as the grant made in favour of the petitioners, is upheld by this Court. Instead, the Tahasildar has once again cancelled the grant and confirmed the earlier order, which is impermissible.
14. Sri.D.R.Ravishankar, learned counsel for the petitioners further contended that the very Forest Department tried to interfere with the lands of the petitioners. The first petitioner filed O.S.No.542/2007 in 15 respect of Sy.No.16/2, measuring 2 acres for permanent injunction against the respondent - State, including the Forest Department, which came to be decreed on 19.01.2013 and an appeal filed by the State Government in R.A.No.137/2013 came to be dismissed on 11.12.2014. He would further contend that petitioner No.2 filed O.S.No.541/2007 in respect of Sy.No.16/1, measuring 2 acres of land for permanent injunction, which came to be decreed on 19.01.2013 itself and subsequently, an appeal filed by the State Government in R.A.No.137/2013 came to be dismissed on 11.12.2014. Against the said judgment and decree passed by the trial Court granting permanent injunction, petitioner No.2 is in possession of Sy.No.16/1. No Regular second appeal filed. The said judgment and decree has attained finality.
15. He would further contend that on perusal of the additional statement of objections and Annexures-R1- proceedings and Annexure-R2 - notification produced by the 16 State Government does not depict Sy.Nos.16/1 or 16/2. He would further contend that as per Annexure-R3, the mahazar was drawn on 19.07.2012, but the mahazar also does not depict Sy.Nos.16/1 and 16/2. He would also contend that in the southern boundary, the name of Babajan S/o.Hayathsab, is the owner of Sy.Nos.16/3. He would further contend that Annexure-R4, the trees in respect of Sy.Nos.16/1 and 16/2, photographs at Annexures-R5 and google map at Annexure-R6, does not depict the existence of the trees and the same has not been contested throughout the earlier proceedings before this Court, in original suit as well as no second appeal is pending between the parties and therefore, he sought to reject the contentions raised by the learned Additional Government Advocate for the first time before this Court. Therefore, he sought to allow the writ petition. 17
16. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the Tahsildar is justified in passing the impugned order dated 12.02.2014 cancelling the grant in favour of the petitioners in the facts and circumstances of the case?"
17. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
18. Having heard the learned counsel for the parties, it is the specific case of the petitioners that the lands were granted to the petitioners on 02.05.1977, and on 10.12.1979, on the basis of the grant, mutation and other Revenue records were entered in favour of the petitioners. When petitioners sought permissions to cut the trees, the same was refused by the respondents which was subject matter of W.P.No.44573/2004 which came to be dismissed 18 by the Order dated 27.07.2006. Aggrieved by the said Order, petitioners filed W.A.No.1422/2006. The Division Bench of this Court, considering the entire material on record, by the Order dated 04.06.2007, while allowing the writ appeal, at paragraph-4 has recorded that, "the order of grant does not indicate that the standing trees were existed as on the date of the grant and on the other hand, there is a recital in the grant order that there are no trees except one tree. Learned counsel for the appellant had also produced additional documents and invites our attention to the RTC extracts- Annexure-K in respect of land in questions for the year 1994-95 to 1999-2000, and in the column of number of trees in the land in question, it is mentioned that there are sagavani and other trees which were grown by the appellant after the land was granted and this aspect of the matter is not considered by respondent No.1 while examining the application filed by the appellant. Therefore, the impugned order and endorsement came to 19 be quashed. The matter was remitted to the first respondent-Deputy Conservator of Forest, to dispose of the same within three months from the date of receipt of copy of the order."
19. In pursuance of the Order passed by the Division Bench of this Court, the Tahsildar, by the Order dated 05.08.2008 and 06.08.2008, as per Annexures-G and H, cancelled the grant. It is also not in dispute that the said order dated 05.08.2008 and 06.08.2008 passed by the Tahsildar was subject matter of W.P. No.11050/2008 and the learned single Judge of this Court, after hearing both the parties, while allowing the writ petition by the Order dated 26.10.2009 at paragraphs 7 and 8, held as under:
"7. With regard to the indication in the order dated
06.08.2008 at Annexure-N that the land had not been cultivated for a period of 31 years, the reason cannot be accepted at this juncture, since as rightly pointed out by the learned counsel for the petitioners, the said contention had not been taken 20 up in the earlier round of litigation except for contending that the tree growth in the said land was prior to the date of grant going by the age of the trees. In any event, when more than 31 years had elapsed from the date of the grant, the respondents could not have in a casual manner cancelled the grant.
8. With regard to the attempt made by the learned Government Advocate to point out that there was a joint survey, the same cannot be taken into consideration in the present petition since firstly it has not been established that there was a joint survey conducted in the presence of the petitioners. Even otherwise, the reason indicated above for quashing the orders would disclose that the said contention had not been taken up in the earlier proceedings and further more, what is sought to be contended by the learned Government Advocate is that there is a discrepancy with regard to the manner in which the phodi is done and the petitioners are not entitled to hold Sy.No.16/1 and what was granted in fact was Sy.No.16/5. Even if the said contention is accepted, the question is only with regard to the assignment of the appropriate survey numbers to the lands, which are actually in 21 the physical possession and cultivation of the petitioners and the same could not have been a ground to cancel grant. Therefore, for the present, the said joint survey report dated 05.04.2008 cannot be relied on and even if there is any rectification to be made to the grant order, the same can only be made in accordance with law after providing opportunity to the petitioners and not otherwise. In any event, the said report cannot be of justification for cancellation of the grant. Therefore, on the face of it, the orders dated 06.08.2008 (Annexure-N) and dated 05.08.2008 (Annexure-P) impugned in the present petition cannot be sustained and the same are accordingly quashed".
Accordingly, the order passed by the Tahsildar canceling the grant came to be quashed and rule made absolute. The said order passed by the learned single Judge setting aside the cancellation of grant made in favour of the petitioner has reached finality.
20. Inspite of allowing the writ petition by setting aside the cancellation of the grant, still the name of the Government was continued in the revenue entries. 22 Therefore, the petitioner filed W.P.Nos. 39093-94/2010 for a writ of mandamus to direct the respondents to mutate the name of the first petitioner in Sy.No.16/2 measuring 2 acres situated at Shettihalli, Kasaba Hobli, Shivamogga. The learned single Judge, by the Order dated 02.03.2012, while allowing the said writ petition, at paragraphs 6 and 7, held as under:
6. On hearing the learned advocates, I direct the respondent No.2 to consider the case of the petitioners for the restoration of their names in the revenue records in respect of the lands in question.
Nothing is placed on the record to show that the rectification to the order granting the land is made by the concerned revenue authorities. When the grant is intact, its consequences have to follow. The turning down of the petitioner's request fro permission to cult the trees standing on the lands in question cannot be a justificatory reason for refusing to make the mutation entry in favour of the petitioners.
7. In the result, I allow these petitions by directing the respondent No.2 to consider the 23 petitioners' request for mutation entries in their names in respect of the lands in question in accordance with law and as expeditiously as possible and in any case within an outer limit of three months from the date of issuance of the certified copy of today's order. The consideration shall be meaningful and in the light and spirit of this order."
Accordingly, this Court, directed the 2nd respondent therein, i.e., the Tahsildar to consider the request for mutation entries in their names in respect of the lands in question in accordance with law and the consideration shall be meaningful and in the light and spirit of the Order. The said order passed by the learned single Judge has also reached finality.
21. When the order passed by the learned single Judge dated 02.03.2012 reached finality, it is the bounden duty of the respondent-Tahsildar to consider to enter names of the petitioners as the grant was intact and consequences has to be followed. But, very strangely, the 24 Tahsildar, by the impugned Order dated 12.02.2014, once again cancelled the grant, reiterating the Order dated 06.08.2008 which is impermissible. When grant made in favour of the petitioners was upheld by the learned single Judge which has reached finality, the Tahsildar, instead of obeying the directions issued by this Court, cannot go once again to cancel the grant and the same is erroneous and contrary to the material on record.
22. When the Order passed by the learned single Judge dated 26.10.2009 made in W.P.No. 11050/2008 quashing the order dated 06.08.2008 and 05.08.2008 passed by the Tahsildar canceling the grant has reached finality and when the direction issued by the learned single Judge in W.P. Nos.39093-94/2010 dated 02.03.2012 holding that the grant was intact and Tahsildar has to consider the request of the petitioner for mutation, the Tahsildar has no jurisdiction to go beyond the Order passed 25 by this Court and proceed to pass the impugned Order. The same cannot be sustained.
23. Though the first petitioner filed O.S.No. 542/2007 for permanent injunction in respect of Sy.No.16/2 measuring 2 acres of Shettihalli, Kasaba Hobli, Shivamogga, against the respondent State including the District Forest Officer, Range Forest Officer, Shivamogga taluk. The said suit came to be decreed on 19.01.2013 holding that the plaintiff proved that he is in possession of the property and also obstruction by the defendants to the possession and defendants have not proved that suit is not maintainable without declaration of title. The said judgment and decree is confirmed in the Appeal filed by the respondent State including Deputy Forest Officer and Range Forest Officer. Against the concurrent findings of fact with regard to possession, the State filed R.S.A.No.1477/2016 which is pending adjudication between the parties. 26
24. It is also not in dispute that the petitioner No.2 also filed O.S.No.541/2007 in respect of Sy.No.16/1 measuring 1 acre 32 guntas against respondent-State including Forest Department for injunction, which came to be decreed on 19.01.2013 which was confirmed by the appellate Court in R.A.No.137/2013 dated 11.12.2014 holding that the 2nd petitioner is in possession of Sy.No.16/1 measuring 1 acre 32 guntas. The respondent filed RSA No.1476/ 2016 before this Court. Admittedly, in the said two Regular Second Appeals, no interim Order has been granted by this Court.
25. Though the learned Additional Government Advocate has filed additional statement of objections on 14.02.2020. A careful perusal of the notifications at Annexures-R1 and R2 does not depict Sy.Nos.16/1 and 16/2. It is also not in dispute that Annexure-R3-mahazar drawn by the Range Forest Officer in the year 2012, depicts that there exists no owner in respect of Sy.Nos.16/1, 16/2. 27 Sy.No.16/3 is a private property. Learned counsel for the petitioner submits that Sy.Nos.16/3, 16/4 and 16/5 are private lands. The submission is placed on record. Whether there exits trees or not in Sy.Nos.16/1 and 16/2 is not subject matter of the present writ petition.
26. The direction issued by this Court on two occasions in W.P.No.39093-94/2010 dated 02.03.2012 directing the Tahsildar to consider the petitioners' request for mutation entry in respect of land in question in accordance with law holding that when the grant is intact, its consequences has to follow, the Tahsildar is bound to enter the name of the petitioners, in view of the finality reached to the order passed by the learned single Judge stated supra. In W.P.No.11050/2008 dated 26.10.2009, cancellation of the grant made in favour of petitioner on 06.08.2008 and 05.08.2008 were quashed and rule was made absolute. When grant intact as on today and directions are issued by the learned single Judge, it is the 28 duty of the Tahsildar to obey the Order passed by this Court, in view of the grant made absolute.
27. Though the learned Additional Government Advocate submits that there are number of trees in the property in question which is subject matter of present writ petition, this Court resist to record any finding on existence of trees, in view of the pendency of two Regular Second Appeals i.e., RSA No.1476/2016 and 1477/2016 in respect of both Sy.Nos.16/1 and 16/2. The Tahsildar is bound to enter the name of the petitioners in respect of the said lands. The same has not been done. The order passed by the Tahsildar is in utter violation of the Order passed by the learned single Judge in W.P.No.11050/2008 dated 26.10.2009 and W.P.Nos.39093-94/2010 dated 02.03.2012. Therefore, same cannot be sustained.
28. For the reasons stated above, writ petition is allowed. The impugned Order passed by the Tahsildar 29 canceling the grant cannot be sustained and is hereby quashed. The Tahsildar is directed to enter the name of the petitioners in the revenue records in respect of Sy.Nos.16/1 and 16/2 situated at Shettihalli, Kasaba Hobli, Shivamogga Taluk and District, which will be subject to the result of RSA Nos. 1476/2016 and 1477/2016 pending adjudication between the parties, within a period of one month from the date of receipt of certified copy of this Order, as the Tahsildar has no locus standi to cancel the grant, when the same was upheld by this Court, as stated supra. That amounts to disobedience of the Order.
Ordered accordingly.
Sd/-
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