Karnataka High Court
Smt. Leetha Abi vs State Of Karnataka on 21 June, 2013
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 21ST DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR. D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P.No.23971/2012 (GM-FOR)
BETWEEN:
SMT. LEETHA ABI,
W/O ABHI ABRAHAM,
AGED ABOUT 47 YEARS,
R/AT MUDOORU VILLAGE & POST,
KUNDAPURA TALUK,
UDUPI DISTRICT. ... PETITIONER
(BY SRI: S.VISHWAJITH SHETTY, ADV.)
AND:
1.STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPARTMENT OF FOREST,
VIDHANA SOUDHA,
BANGALORE.
2.TREE AUTHORITY AND
CHIEF FOREST CONSERVATOR,
MANGALORE CIRCLE,
MANGALORE.
3.THE DEPUTY FOREST CONSERVATOR,
KUNDAPURA DIVISION,
KUNDAPURA.
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4.THE ASSISTANT FOREST CONSERVATOR
AND TECHNICAL ASSISTANT TO DEPUTY
FOREST CONSERVATOR,
KUNDAPURA DIVISION,
KUNDAPURA. ... RESPONDENTS
(BY SRI: R.G.KOLLE, AGA)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
CALL FOR THE RECORDS FROM THE SECOND
RESPONDENT WHICH ULTIMATELY RESULTED IN PASSING
THE IMPUGNED ORDER VIDE ANNEXURE-A, DATED
20.4.2012 MADE IN APPEAL NO.4/2012-13 BY THE 2ND
RESPODNENT AND ORDER VIDE ANNEXURE-B DATED
18.5.2010 BY THE THIRD RESPONDENT.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, NAGARATHNA J., MADE THE
FOLLOWING:
ORDER
1. This writ petition assails the order passed by the second respondent, dated 20/04/2012 (Annexure "A"), in Appeal No.4/2012-13 and order dated 18/05/2010, passed by the third respondent (Annexure "B").
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2. The brief facts of the case are that the petitioner claims to be the absolute owner and in possession of land bearing Sy.No.63/2A13, ad measuring 18 Acres 32 Cents, situated at Mudoor village, Kundapura Taluk, Udupi District. The petitioner with an intention to grow cashew plantation in that land, sought permission to fell 753 out of 1170 trees. She made an application dated 28/06/2008 before the third respondent, along with the requisite documents. The third respondent called for a Report from the fourth respondent after holding a spot inspection and earmarking 753 trees, sought to be felled. Annexure "E", is the copy of the Report. On the basis of the said Report, third respondent by his order dated 18/05/2010, rejected the application filed by the petitioner seeking permission to fell trees. Aggrieved by the said order, she filed an appeal under Section 14 of the Karnataka Forest Conservation Act, 1976 (hereinafter, referred to as the "Act"), which appeal was also dismissed. Assailing the said orders, this writ petition has been filed.
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3. Statement of objections has been filed on behalf of the respondents. It is averred that the petitioner's land is located about 2000 feet above the sea level in an "Enclosure" surrounded by thick forest all around, which is known as "Ever Green Forest", which has been categorized as "Eco-Sensitive Zone" as per the Guidelines dated 09/02/2011, issued by Ministry of Environment and Forestry, Government of India. It is also located within 10 kilometers from the boundary of Mookambika Reserved Forest and Nagankarbare Protected Forest and it is not permissible to grant permission for felling of trees at such an altitude of the Western Ghats as it would result in soil erosion. The cutting of trees would also adversely affect wildlife flora and fauna as well as ecology and environment of the land in question. That the Technical Assistant and the Assistant Conservator of Forest, Kundapur, has Reported that surplus land held by the petitioner has been identified by the Government for being taken over and the remaining land is sought to be purchased by the forest under CAMPA Scheme, having regard to the evergreen -: 5 :- nature of the forest and enclosure. That the order passed in the case of Smt.Naseema has no application to the facts of the present case. The land belonging to Smt.Naseema, is situated less than 500 feet above the sea level, the vegetation is categorized as "moist deciduous semi ever green forest", which is different from "Evergreen Forest". It is situated adjoining human habitat and township and not within the "Enclosure" or in "Eco Sensitive Zone", as that of the petitioner's land. It is also stated that the predecessor in title of Smt.Naseema, had surrendered 363 Acres of surplus land to the State Government and therefore, the request of Smt.Naseema for developing of Cashew Plantation was considered in that context and discretion was exercised in her favour.
4. We have heard learned counsel for the petitioner and learned A.G.A. for the respondents and perused the material on record.
5. The main contention raised by the petitioner's counsel is that the second and third respondents were not -: 6 :- right in declining grant of permission to the petitioner to fell trees. That in respect of the land in Sy.No.78/1, which is situated adjacent to the petitioner's land and belonging to one Smt.Naseema, permission to fell trees has been granted though her lands are situated within a distance of three to four kilometers from Mookambika Reserve Forest Area, by order dated 12/04/2012 (Annexure "F"). However, insofar as the petitioner is concerned, illegal and arbitrary orders have been passed declining grant of permission to fell trees. He therefore, submitted that the said orders be quashed and permission be granted to the petitioner to cut and remove trees for the purpose of cashew plantation.
6. Learned A.G.A. with reference to his Statement of Objection has however, defended the impugned orders and has stated that the order passed in Smt.Naseema's case cannot be a precedent or a reason to grant permission insofar as this petitioner is concerned. In the case of Smt.Naseema, no doubt, permission was granted to her to -: 7 :- cut certain number of trees out of 883 trees coming within patta land Sy.No.78/1, measuring 12 Acres, subject to certain terms and conditions. He therefore contended that there is no merit in the Writ Petition.
7. On perusal of the records we find that the Assistant Conservator of Forest and Technical Assistant to the Deputy Conservator of Forest had submitted a Report (Annexure "E") stating that the petitioner had sought for felling of 753 trees. That the survey number in respect of which, the application has been made there is a lot of greenery and it is situated above the sea level and if the trees are cut and removed, there could be diminution of soil. The survey number is abutting Mookambika Protected Forest Area, which is a dense forest and in the interest of protection of wild life, it is necessary to preserve the trees. Also the State Government also intends to take back certain extent of lands under CAMPA Plan. Therefore, the Report recommended rejection of the application. Based -: 8 :- on the said Report, the third respondent rejected the application.
8. The Appellate Authority namely, the second respondent while adverting to the findings in the Report, stated that in the interest of environment, cutting of trees was not permissible. It is also stated that, an extent of ten kilometers from the boundary of thick forest or a National Park is a eco-sensitive zone, which is a protected area under the Wildlife Conservation Strategy, 2002. It is also noted that the petitioner's survey number is within ten kilometers from Mookambika Reserved Forest Area and it has to be considered to be a forest area, irrespective of the ownership. Therefore, the Appellate Authority felt that any grant of permission for cutting and felling of trees may cause danger to the wildlife movement and for the Eco- Sensitive Zone.
9. We find that the reasoning of the authorities in declining to grant permission to the petitioner to fell trees are legal and in accordance with law, having regard to -: 9 :- environmental concerns. Merely because Smt.Naseema has been granted permission to fell trees in the vicinity, cannot be a precedent to permit all other land owners to fell trees. The validity of the permission granted to Smt.Naseema, is not a subject matter of this writ petition. If the said order made in favour of Smt.Naseema is incorrect, then, the petitioner cannot seek permission in her case also based on such an order on the principles of equality. Assuming that the order passed in favour of Smt. Naseema is correct, would also not give rise to a plea of discrimination against the petitioner herein. Each case would have to be considered on its own merits and the principles regarding exercise of discretion in accordance with law is applicable in the instant case. The petitioner cannot claim parity with Smt.Naseema. The principles of negative equality would also not apply in the instant case. We find that the reasons assigned by the two authorities based on the Report declining permission to the petitioner to cut trees are justified and would not call for any -: 10 :- interference in this Writ Petition. There is no merit in this writ petition. The petition is dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE *mvs