Karnataka High Court
Krishnaji S/O. Ramachandra Babshet vs The Principal Chief Conservator on 5 April, 2023
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WP No.62884 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.62884 OF 2012 (GM-FOR)
BETWEEN:
KRISHNAJI S/O. RAMACHANDRA BABSHET,
AGE: 62 YEARS, OCC: BUSINESS,
R/O. 7TH CROSS, KANAKA NIVAS,
BHAGYA NAGAR, AANIGAL, BELGAUM.
...PETITIONER
(BY SRI SHIVAKUMAR S.BADAWADAGI, ADV.)
AND:
1. THE PRINCIPAL CHIEF CONSERVATOR
OF FOREST, ARANYA BHAVAN 18TH CROSS,
MALLESHWARAM,BANGALORE.
2. THE DEPUTY CONSERVATOR OF FOREST,
HALIYAL DIVISION, DIST: UTTARA KANNADA.
3. THE RANGE FOREST OFFICER,
DANDELI RANGE, HALIYAL DIVISION,
DANDELI, DIST: UTTARA KANNADA.
4. THE ASSISTANT CONSERVATOR OF FOREST,
HALIYAL DIVISION, DANDELI,
YASHAVANT
NARAYANKAR
DIST: UTTAR KANNADA.
Digitally signed by
YASHAVANT
5. THE CONSERVATOR OF FOREST &
NARAYANKAR
Location: High Court of
Karnataka, Dharwad Bench
Date: 2023.04.12 10:12:48 -
0500
TREE AUTHORITY, CANARA CIRCLE,
SIRSI, DIST: UTTAR KANNADA.
...RESPONDENTS
(BY SRI PRASHANT V.MOGALI, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
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WP No.62884 of 2012
AWARD DATED 27.06.2011 PASSED BY 5TH RESPONDENT IN THE
APPEAL FILED BY PETITIONER AND COPY OF THE SAME IS
PRODUCED AND MARKED AS ANNEXURE-G TO WRIT PETITION,
AND CONSEQUENTLY BE PLEASED TO ALLOW APPEAL AS PRAYED
AND SUCH OTHER RELIEFS.
THIS WRIT PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed assailing the order dated 27.06.2011 passed by 5th respondent declining permission to the petitioner to fell standing trees in Sy.No.6.
2. Facts leading to the case are as under:
Petitioner submitted an application to 2nd respondent/Deputy Conservator of Forest, Halyal Division seeking permission for felling trees situated in Sy.Nos.5 & 6 of Badagunda village of Joida Taluk of Karwar District.
The said dispute was subject matter before this Court in W.P.No.46547/2004. Pending consideration of the said writ petition, this Court appointed Court Commissioner with a direction to submit a report in regard to existing of -3- WP No.62884 of 2012 standing trees in Sy.No.5 & 6. The Commissioner in terms of direction issued by this Court has submitted a report.
3. This Court while taking cognizance of the Commissioner's report took cognizance of the fact that the petitioner's claim insofar as Sy.No.5 is concerned, the same has attained finality. This Court directed 2nd respondent herein to consider the application submitted by the petitioner seeking felling of trees only in respect of Sy.No.6. This Court also directed 2nd respondent to take note of Commissioner's report tendered before this court.
4. 2nd respondent took up the matter for fresh consideration. 2nd respondent vide order dated 9.2.2009 as per Annexure-F has declined to grant permission and consequently, application is rejected, which is assailed before this Court in the present writ petition.
5. Heard the learned counsel for the petitioner and learned HCGP for respondents.
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6. On perusal of the impugned order passed by 2nd respondent, this Court would find that 2nd respondent while considering the petitioner's request for felling trees in Sy.No.6 has virtually violated the directions issued by this Court in W.P.No.46547/2004. This Court had specifically directed 2nd respondent to examine the request of petitioner by taking cognizance of Commissioner's report which was admitted and recorded as part of this Court's orders. 2nd respondent on the contrary ventured into ordering for one more survey. In the impugned order, 2nd respondent has indicated that on the day when survey was fixed, the petitioner failed to participate in the survey. The order under challenge does not indicate that the petitioner was notified in regard to proposed survey that was undertaken by 2nd respondent. Therefore, prima facie, this Court would find that the petitioner was never notified insofar as second survey is concerned.
7. Be that as it may, the order under challenge is liable to be quashed on two counts. Firstly, the impugned -5- WP No.62884 of 2012 order passed by 2nd respondent is in violation of direction issued by this Court. Secondly, reasons assigned while declining permission to fell trees in Sy.No.6 runs contrary to the Court Commissioner's report. 2nd respondent has declined to grant permission only on the premise that five tree situated in Sy.No.5 and 6, if permitted to fell would lead to soil erosion and consequently, land sliding. The reasons assigned prima facie indicate that 2nd respondent has not applied his mind. The petitioner is not laying claim over those notified trees by the Commissioner's report which are found to be located in slope area. There is no challenge to this part of report submitted by the Court Commissioner. On the contrary, the petitioner intends to fell those tress which do not fall within slope zone as indicated by the Court Commissioner.
8. This Court has also taken cognizance of contrary stand which is found in the statement of objections. In statement of objections, authorities claimed that felling of trees in Sy.No.6 cannot be entertained as the -6- WP No.62884 of 2012 petitioner has already undertaken the exercise of felling of trees in excess of prescribed limit of felling trees per hectare. This defence is found to be missing in the impugned order under challenge. Therefore, what this Court would find that the authorities have been changing the defence and this shifting of defence is not substantiated. The respondents in the statement of objections vaguely refer to the defence without referring the Commissioner's report.
9. It would be useful for this Court to cull out mahazar prepared by the Court Commissioner while carrying out Survey, which reads as under:
"MAHAZAR"
We, below mentioned panchaas i.e.
1) Sri. Vasant Balu Gadakar, resident of Badagundi,
2) Sri. Shivaji Eshwara Kanakupakar, R/o. Badagundi, having gathered as on this Nineth day of February, two thousand six (9-2-2006) and drawn this mahazar by written as under:-
That the above gathered panchaas written and drawn this mahazar that on this day dated 9-2-2006 morning at about 11-00 'O' Clock called us by the Range Forest Officer, Dandeli Range, Dandeli; and Section Forester - of Moulinga ; at the place of Sy.No.5 of Badagund village, with an intention to verify the trees as per the -7- WP No.62884 of 2012 marking list in the ownership block of Sri. K.R. Baabshet, Contractor, Belgaum, who is contract of the trees of the land in Sy.No. 5 and 6 of Badagund village; and accordingly when we examined and verified the trees in Sy.No.5 and 6 along with the Range Forest Officer and his staff and also owner etc., having together with made this Mahazar as asked by them to do so; and while inspecting the said Sy.No. 5 and 6 it is found that out of the trees as available in the said Sy.Nos. the below mentioned five kind of trees are existing at the steep-slope in the said Sy.Nos. i.e.:-
Teak tree one number (Tectona grandis) Kindal tree one number (Terminalia paniculata) Jamun tree one number (Syzyzium Cumini) Dhaman tree one number (Grevia tiliafolia) Mango tree one number (Mangifera indica) The above said five trees are found in the area of Sy.No.5 and 6 of Badgundi village, in steep-slope area.
This Mahazar is drawn by coming the work morning at about 11-00 'O' clock and closed at about 4- 00 'O' clock afternoon. The said Mahazar is drawn and written in Kannada by saying to Forest staff; as we cannot read and write the Kannada Language; and accordingly written by them - as we say, which are true and correct; and we signed to this Mahazar accordingly.
1) Sd/-
2) Sd/-
Written by: Sd/-
(B.G. Badagund) Sd/-
(Section-Forester, (Maulinga) Before me:
Sd/-
Range Forest Officer, Dandeli Range;
Dandeli;-8- WP No.62884 of 2012
10. Learned counsel for the petitioner while placing reliance on above mahazar has made submission, on instruction, that his client has no intention of felling five trees, which are found to be located in slope area of Sy.Nos.5 and 6. Even the Court Commissioner in his report has indicated that except these five trees, other trees can be felled. These five trees are found in different slope areas. Therefore, the Court Commissioner in his report has indicated that these trees cannot be felled. This Court while accepting the Court Commissioner's report has come to the conclusion that except these five trees, the petitioner's request for felling trees located in Sy.No.6 needs to be considered by the authority.
11. The order under challenge does not indicate that there is proper compliance of Section 8 of Karnataka Preservation of Trees Act, 1976 coupled with direction issued by this Court in WP No.46547/2004. Therefore, order under challenge is not sustainable. The reasons assigned by 2nd respondent while declining permission -9- WP No.62884 of 2012 does not adhere to the direction issued by this Court in the aforestated writ petition. Therefore, I am of the view that the order under challenge is liable to be quashed.
12. For the reasons stated supra, I proceed to pass the following:
ORDER
a) Writ Petition stands allowed.
b) The impugned order dated 27.06.2011 passed by 5th respondent vide Annexure-G is set-aside.
c) 2nd Respondent is directed to reconsider the application submitted by the petitioner in terms of direction issued by this Court in WP No.46547/2004.
d) The petitioner shall submit an undertaking that he will not fell trees as indicated in the report submitted by the Court Commissioner.
e) After notifying the petitioner, 2nd respondent shall pass orders in accordance with law bearing in mind the direction issued by this Court coupled with the Court
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Commissioner's report within three months from the date of receipt of certified copy of this order.
SD/-
JUDGE EM/JTR List No.: 1 Sl No.: 95