Karnataka High Court
Smt.Smitha W/O Vinayak Jadhav vs Deputy Commissioner And President on 31 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 106142 of 2023
C/W WP No. 103168 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 106142 OF 2023 (GM-FOR)
C/W
WRIT PETITION NO. 103168 OF 2018
IN WP NO.106142/2023
BETWEEN
SMT. SMITHA W/O. VINAYAK JADHAV,
AGE: 56 YEARS, PROMOTER/PROPRIETOR,
WHISTLING WOODZS BADAGUND VILLAGE,
AT. PO. GANESHGUDI,
JOIDA TALUK, DIST: UTTAR KANNADA,
REGISTERED OFFICE, JADHAV BUILDING,
OPP. VRL LOGISTICS LIMITED,
9TH CROSS, MARATHA COLONY,
DHARWAD.
...PETITIONER
(BY SRI. V.M. SHEELVANT AND SRI. K.S. PATIL, ADVOCATES)
AND
GIRIJA A 1. CHIEF CONSERVATOR OF FOREST AND
BYAHATTI
APPELLATE AUTHORITY,
Location: HIGH
COURT OF
CANARA CIRCLE, SIRSI-581401,
KARANTAKA
DHARWAD DIST: UTTARA KANNADA.
BENCH
2. THE ASSISTANT CONSERVATOR OF FOREST,
DANDELI SUB DIVISION, DANDELI-581325,
TQ: HALIYAL, DIST: UTTARA KANNADA.
3. THE DEPUTY CONSERVATOR OF FOREST,
HALIYAL DIVISION, HALIYAL-581329,
TQ: HALIYAL, DIST: UTTARA KANNADA.
4. RANGE FOREST OFFICER,
DANDELI DIVISION, DANDELI,
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DIST: U.K.-581325.
...RESPONDENTS
(BY SRI. GANGADHAR J.M., AAG FOR
SRI. ASHOK T. KATTIMANI, AGA FOR R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT
QUASHING THE ORDER DATED 29.09.2023 BEARING NO. APPEAL
NO.195/12-13 PASSED BY CHIEF CONSERVATOR OF FOREST AND
APPELLATE AUTHORITY, SIRSI / RESPONDENT NO.1 VIDE
ANNEXURE-J AND ETC.
IN WP NO.103168/2018
BETWEEN
SMT. SMITHA W/O. VINAYAK JADHAV,
AGE: 55 YEARS, PROMOTER/PROPRIETOR,
WHISTLING WOODZS RESORT, BADAGUND VILLAGE,
AT.PO. GANESHGUDI,
JOIDA TALUK, DIST: UTTARA KANNADA,
REGISTERED OFFICE, JADHAV BUILDING,
OPP: VRL LOGISTICS LIMITED,
9TH CROSS, MARATHA COLONY, DHARWAD.
...PETITIONER
(BY SRI. V.M. SHEELVANT AND SRI. K.S. PATIL, ADVOCATES)
AND
1. DEPUTY COMMISSIONER AND PRESIDENT
DISTRICT TOURISM DEVELOPMENT SOCIETY,
KARWAR, THE OFFICE OF THE
DEPUTY COMMISSIONER,
KARWAR, DIST: UTTARA KANNADA.
2. THE DEPUTY CONSERVATOR OF FORESTS,
HALIYAL DIVISION, HALIYAL.
...RESPONDENTS
(BY SRI. GANGADHAR J.M., AAG FOR
SRI. ASHOK T. KATTIMANI, AGA FOR R1-R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT, ORDER OR DIRECTION AND QUASH THE
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CIRCULAR BEARING NO.¥ÀE/G.¤Ã.PÀ/PÁ/2018-19/33
DATED:21/23.04.2018 PASSED BY THE RESPONDENT NO.1
CANCELLING THE LICENSE/PERMISSION TO RUN WHISTLING
WOODZS RESORT SITUATED IN SY.NO.12 A OF BADGUND VILLAGE
IN JOIDA TALUKA OF U.K. DISTRICT, PRODUCED AT ANNEXURE-"H".
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 31.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
These two writ petitions are filed by the petitioner
praying this Court in W.P.No.103168/2018 by issuing a
writ in the nature of certiorari or any other appropriate
writ, order or direction to quash the circular bearing No.
¥ÀE/G.¤Ã.PÀ/PÁ/2018-19/33 dated 21/23.04.2018 passed by
the respondent No.1 canceling the license/permission to
run Whistling Woodzs Resort situated in Sy.No.12A of
Badagund village in Joida Taluk of U.K. District at
Annexure-H and grant such other reliefs as deemed fit in
the circumstances of the case. In W.P.No.106142/2023
praying this Court to issue a writ in the nature of certiorari
or any other appropriate writ quashing the order dated
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29.09.2023 passed by the Chief Conservator of Forest and
Appellate Authority, Sirsi vide Annexure-J and any other
relief as deemed fit in the circumstances of the case.
2. In W.P.No.103168/2018, it is contended that
the petitioner purchased agricultural land in Sy.No.12A/1
measuring 6 acres 7 guntas situated at Badgund village,
District Uttara Kannada from the earlier owner Smt.
Nagarathana Vittal Hegade. The land being revenue land,
the name of the petitioner came to be entered in the
record of rights consequent upon the purchase made by
the petitioner on 03.02.2012. The petitioner applied for
conversion of nature of the land to non-agriculture
purpose office industrial (hospitality). The office of the
Deputy Commissioner, U.K. passed the order of conversion
on 07.11.2013. The Town Planning Authority, Dandeli
approved technical approval layout to the single plot
layout on 25.03.2015. The Gram Panchayat, Aveda issued
license for construction of 14 cottages for tourist
hospitality on 20.0402016. The Bank of Baroda, Dharwad
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Branch sanctioned s loan of Rs.5 Crores on 12.07.2016.
The respondent No.1 approved the project to provide
tourism services on 28.10.2016. The project was approved
under Category II of more backward area with less than
100 crores investment identifying project as nature
tourism cluster of focused tourist destination of Western
Ghats. The project was approved under Woman
Entrepreneur Scheme. The respondent No.2 forwarded a
report to the respondent No.1 indicating registration of
complaint against the petitioner regarding encroachment
of forest land and recommended cancellation of permission
on 16.02.2018. The Deputy Conservator of forests visited
the suit property for conduct of survey and without
conducting the same, panchanama was drawn behind the
back of the petitioner on 28.02.2018. The respondent
No.1 without holding any enquiry regarding violation of
either Forest Act or any other provisions of law cancelled
the permission to run the resort dated 27.10.2016. By
order, the respondent No.1 also directed the Assistant
Commissioner, Karwar to verify licenses, permission etc,
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of the petitioner and to take action on 23.04.2018. Hence,
the petitioner being aggrieved by the order of cancellation
to run the resort and directing the Assistant
Commissioner, Karwar to take further action without
holding any inquiry solely based on the report of the
respondent No.2 indicating encroachment of forest land
without even holding the survey, has filed
W.P.No.103168/2018.
3. The grounds urged in W.P.No.103168/2018 are
that the right to practice any profession or to carry on any
occupation, trade or business is protected under Article
19(1)(g) of the Constitution of India. The petitioner is
Woman Entrepreneur and started the industry by investing
Rs.7 crores. 17 employees are working in the resort on full
time basis and more than 200 members of the locality are
directly and indirectly depending upon the petitioner
industry. The impugned order is passed in violation of
fundamental right of freedom of profession of the
petitioner and the respondent No.2 does not have any
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authority to report and seek closure of running industry.
The said jurisdiction is not vested in him by law. The
action of the respondents is high handed and is
detrimental to the interest of the petitioner. The allegation
of encroachment made against the petitioner-industry is
without any basis and there is no survey conducted by the
respondent to identify any part of the forest being
encroached by the petitioner. The survey conducted is
inconclusive and report submitted by the respondent No.2
is not served on this petitioner. Even the respondent No. 1
passed the impugned order without holding any inquiry
and on that ground itself that no enquiry was held, the
impugned order is liable to be quashed. The decision is
against the deprival of personal liberty to the petitioner
conferred under Article 21 of the Constitution of India. The
petitioner by hard work established the resort. The report
of the respondent No. 2 is without authority of law, illegal
and arbitrary and the same has to be quashed.
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4. Petitioner's counsel relied upon the documents
at Annexures-A to H in support of her claim.
5. This Writ Petition is resisted by filing statement
of objections by respondents contending that the above
Writ Petition is liable to be dismissed on the ground of
suppression and misrepresentation of material facts. The
petitioner claims to have purchased the land in Sy.
No.12A/1 measuring 6 acres 7 guntas of agricultural Land
on 03.02.2010. No doubt, vide order dated 07.11.2013
got permission from the Deputy Commissioner, Uttara
Kannada District for Non-Agricultural Industrial
(Hospitality) purposes but the petitioner has suppressed
the fact that an extent, an extent of only 4 acres and 36
guntas of Sy.No.12A/1 was converted for Industrial
(Hospitality) purpose. In fact, the project approval order
issued by the respondent No.1 permitting the Petitioner to
construct the resort is also in respect of only an extent of
4 acres 36 guntas. It is also contended that in the meeting
held on 07.10.2016 by the District Level Project Approval
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Committee, a condition was imposed that the petitioner
shall obtain the approval of any changes in the Blue Prints,
compulsorily and coy of the meeting proceedings of
respondent No.1 dated 26.10.2016 is produced at
Annexure-R1.
6. It is also contended that the petitioner had
completed the construction of the resort by committing
various violations and subsequently on receiving credible
information, the Range Forest Officer of Dandeli Range,
Dandeli, raided the resort premises of the petitioner on
23.01.2018 and that a 3 HP Saw Mill Machine, Teak Wood
logs and Seesum logs were found stacked in the resort. It
is further contended that the petitioner had encroached an
extent of 2 acres 20 guntas of forest land in Sy.No.7
illegally clearing the forest plants and trees and further
found that a swimming pool was constructed illegally. The
boundary stones were also found removed and re-fixed
elsewhere. Though petitioner has indulged in encroaching
the property belonging to the Forest Department, a case
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was registered in Crime No.01/2017-18 of Range Forest
Office, Dandeli and the same was reported to the second
respondent on 08.02.2018. A copy of report of Range
Forest Officer is produced at Annexure-R2 and a copy of
FIR is produced at Annexure-R3. The said letter is
produced at Annexure-R4. Based on this letter, the
respondent No.1 issued a show cause notice on
19/20.03.2018 to the petitioner-resort as to why the
Project Approval order dated 27.10.2016 should not be
cancelled for violation of terms and conditions therein and
for committing offences under Karnataka Forest Act and
Rules. The copy of the show cause notice is produced at
Annexure-R5. The petitioner-Resort submitted reply dated
05.04.2018 and the same was considered and passed the
cancellation order only after being fully satisfied that there
were violation of conditions specified in the meeting
proceedings of the respondent No. 1 dated 26.10.2016. It
is also contended that in terms of the interim order dated
26.06.2018 granted by this Court, joint survey was
conducted on 07.06.2018 and 14.06.2018 as per
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Annexure-R6 and found encroachment and violations
committed by the petitioner. The petitioner is not only
encroaching the forest land to construct the resort but also
utilized the non-converted area and in fact the petitioner is
found encroaching even the Kali River Bed. It is also
contended that though the survey was conducted on
07.06.2018 to 14.06.2018, the petitioner has failed to
handover the encroached portion back to the Forest
Department and thereby violated the interim order
granted by this Court. It is also contended that once a
solemn undertaking given to the Court, the petitioner
ought to have handed over the encroached land. The
material clearly discloses that the petitioner has
encroached the forest land and thereby FIR was also
registered against her. Hence, the Writ Petition is liable to
be dismissed.
7. The petitioner in W.P.No.106142/2023 has
sought for an order to quash the order dated 29.09.2023
bearing No. Appeal No.195/12-13 passed by Chief
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Conservator of Forest & Appellate Authority, Sirsi vide
Annexure-J and grant such other relief.
8. The petitioner while seeking the relief,
reiterated the averments made in the earlier Writ Petition
and also annexed the documents claiming that the
property to the extent of 6 acres 07 guntas and Sy.
No.12A/2 measuring 1 acre situated at Badgund village
Tq: Jolda, Dist: U.K. was purchased as an agricultural land
in the year 2010 as per Annexure-A. Thereafter got the
conversion order on 07.11.2013. The Town Planning
Authority, Dandeli also given technical approval to the
single plot layout. The Gram Panchayat, Aveda also issued
license for construction of 14 cottages for tourist
hospitality and the copy of the order dated 07.11.2013
i.e., conversion order is produced as Annexure-B. The
Deputy Commissioner and President District Tourism
Development Society, Karwar approved the project to
provide tourism services. The petitioner after approval of
the project, obtained license for water sports and boating
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from Gram Panchayat Aveda. The petitioner has also taken
consent from the Karnataka State Pollution Control Board,
Karwar to establish and run the petitioner-resort. The copy
of the permission and project approval order by
Department of Tourism are produced as Annexures-C &
C1. It is also contended that the respondent No.2-Deputy
Conservator of Forest, Haliyal started to harass the
petitioner and filed two complaints and criminal complaints
are still pending and all of a sudden, the Deputy
Conservator of Forest, Haliyal issued notice of survey to
the resort. On 28.02.2018, the ADLR Joida, Deputy RFO,
RFO and the Forest Guard came to the premises and
started to conduct the survey. However, survey could not
be completed, indicating non-completion of survey, drawn
panchanama. The petitioner fairly submitted that in case
any forest encroachment is found, she would vacate it
immediately. The copy of panchanama dated 28.02.2018
is produced as Annexure-D. It is also submitted that
before approving the project and before issuing orders,
the authorities have conducted inspection and surveyed
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the land of the petitioner. There was no encroachment of
even an inch of the forest land. It is submitted that the
based on the panchanama and report of the Deputy
Commissioner, Karwar, an inconclusive panchanama
alleging encroachment of forest land, recommended for
cancellation of permission. The Deputy Commissioner and
President District Tourism Development Society, Karwar,
without holding any enquiry regarding violation of either
forest Act or any other provisions of law and also without
giving any opportunity, cancelled the permission in terms
of Annexure-E dated 27.10.2016.
9. It is also the contention of the petitioner that
W.P.No.103168/2018 is filed in terms of Annexure-F and
this Court after hearing both the parties granted interim
order of stay on 26.04.2018 to hold joint survey and
petitioner shall peacefully vacate the encroached area in
terms of undertaking and a copy of the interim order in
W.P.No.103168/2018 is marked as Annexure-G. It is also
contended that in terms of the directions of this Court in
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the connected Writ Petition in the order dated 14.06.2018,
joint survey of the Survey No.12 was conducted and a
copy of the joint survey is produced as Annexure-H. But,
the respondents prevailed over the Assistant
Commissioner and ADLR to show certain portion as Forest
land in spite of clear indication of land being revenue land.
It is contended that survey map noted the forest Survey
stones around Survey No.12. The entire land of Survey
No.12 fell beyond forest survey stones indicating no
encroachment of forest land. The Survey Map has shown
Survey No.12 measuring 2 acres 11 guntas more than the
Revenue Record entries. This indicates discrepancy in
measurement column. The Survey No.12 is surrounded by
the Forest Survey No.7. The respondents are continuing
high handedness and an attempt was made to remove
alleged encroachment. Despite the dispute being sub-
judice before this Court, the impugned order has been
passed by the respondent No.1 directing to demolish the
survey structure alleging encroachment of forest land.
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Hence, the present writ petition is filed challenging
Annexure-J.
10. The main contention of the petitioner before
this Court is that the order the impugned order is
erroneous and earlier this Court directed that if any
encroachment, the petitioner to vacate the same in terms
of the undertaking. In compliance of the order of this
Court, survey was conducted on 14.06.2018 and
conclusively held that none-inclusion of forest land by the
petitioner. The survey Map clearly indicates all that part
and parcel of Survey No.12 is situated beyond forest
stones indicating color of Revenue land. The Respondents
does not have any authority over the portion of land so as
to pass the impugned order. Hence, prayed this Court to
quash Annexure-J.
11. In pursuance of the notice issued by this Court,
the respondents appeared and filed statement of
objections. In the statement of objections, it is contended
that the appellate authority having considered the material
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on record passed the impugned order at Annexure-J
concurring with records for encroachment and the
petitioner has suppressed the material facts and
misrepresented the facts before this Court. The joint
survey conducted in accordance with order passed by this
Court which discloses clear encroachment. The State in
the statement of objections that the petitioner had filed
O.S.No.222/2023 and the same was withdrawn. It is also
contended that revenue authorities have not been arrayed
as respondents, but they are also necessary parties to the
proceedings. The Government of Karnataka vide G.O No.
RD dated 19.08.2014 has constituted District Level Task
Force for removing the encroachments on Government
lands and the same is produced as Annexure-R1. It is laos
contended that the petitioner suppressed the material fact
approached this Court by filing a Writ Petition iwhtout
filing any appeal and even the certified copy of the order
sheet along with plaint copy in O.S.No.222/2023 is
produced as Annexure-R2. The petitioner has also
suppressed the admission and written representation
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dated 05.09.2023 addressed to Assistant Conservator of
Forest/respondent No.2 wherein accepted the survey
conducted in compliance with the order passed in
W.P.No.103168/2018 and copy of the letter dated
05.09.2023 is annexed as Annexure-R3. It is also
contended that the petitioner suppressing the material
facts, has obtained interim order dated 06.09.2023. It is
contended that the respondents had also vacated and
taken possession of 10 guntas portion of the encroached
reserved forest land bearing Sy.No.7. The original
photographs of having taken possession are collectively
produced as Annexure-R4 series.
12. The respondents have filed statement of
objection in Writ Petition No.103168/2018 and produced
the copy of the letter dated 17.09.2022 as Annexure-R5.
It is contended that the petitioner has constructed
swimming pool in forest area and continuously indulging in
illegal non-forest activity in reserved forest area. Even
after the determination of the encroachment and he
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accepting the joint survey as per Annexure-R2, has not
vacated the encroached reserved forest area as
undertaken.
13. It is contended that Survey No.12 of
Badugunda Village measures total extent 10 acres 19
guntas. The petitioner claims to have purchased a total
extent of 7 acres and 7 guntas of land and remaining
extent of Sy.No.12 is 3 acres 12 guntas and is numbered
as Survey No.12B. The Revenue Records clearly show that
the said 3 acres and 12 guntas of Survey No.128 is owned
by Karnataka Power Corporation, a Government of
Karnataka undertaking. The land surrounding this entire
extent of Survey No.12 which is totally measuring 10 acres
19 guntas which is adjacent to reserved forest land
bearing Forest Survey No.7 as per the revenue record. To
substantiate the same, Record of Rights showing revenue
entries in favour of Karnataka Power Corporation to the
extent of 3 acres 12 guntas is produced as Annexure-R6.
The village map of Badgunda Village is produced as
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Annexrue-R7. It is also contended that pursuant to the
orders of this Court, the joint survey was completed by the
Respondent Authorities. The Deputy Director of Land
Records, Karwar has through his subordinate Officers
namely the Assistant Director of Land Records and Taluk
Surveyor in the presence of Respondent Officers and
Revenue Officers completed the Joint survey. The
panchanama dated 07.06.2018 and panchanama dated
14.06.2018 bear the signature of Mr. Vinayak S. Jadhav,
as Managing Director of petitioner in the list of signatories
who have signed as panchamana duly conducted as part of
the joint survey to identify the encroachment area and
marking with proper boundary stones. The copy of both
the panchanama are produced as Annexures-R8 and R9.
It is also contended that when the undertaking was given
before this Court and in terms of the same, not vacated
the area. The respondent NO.1 herein was exercising the
power under Section 64-A(3). Having taken note of the
written arguments filed by the petitioner and also
considering the joint survey, taken a decision. The copy of
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the written arguments of the petitioner is produced as
Annexure-R10. The respondent No.1 taking into note of
joint survey report and in compliance of the order of this
Court has directed to conduct another survey and the
same was conducted jointly on 07.06.2018
and14.06.2018. The said report is also challenged before
the respondent No.1 and the respondent No.1 having
considered the report, dismissed the appeal. The Google
photographs from years 2005 to 2023 of the impugned
lands are collectively produced as Annexure-R11 series.
The other suit is also filed in O.S.No.239/2023 and the
copy of the summons is produced as Annexure-R12. It is
contended that in view of the judgment of the Hon'ble
Apex Court T.N. Godavarmen Thirumulkapad Vs. Union of
India1 exercisedthe power under Section 64-A(3) of
Karnataka Forest Act and ordered for eviction and the
order is inconformity with law and prayed this Court to
dismiss the writ petitions.
1
AIR 1997 SC 1228
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14. Counsel appearing for the petitioner
vehemently contend that mere issuance of order of closure
of the resort is clear violation of principles of natural
justice and ought not to have passed the order at
Annexure-H which is the subject matter of Writ Petition
No.103168/2018 wherein licence dated 27.10.2016 was
cancelled. The counsel would also contend that the very
joint survey report submitted before the Court at
Annexure-H to W.P.No.106142/2023 is also erroneous.
Consequent upon Annexure-H, the order passed in terms
of Annexure-J to W.P.No.106142/2023 is also erroneous.
The counsel mainly relies upon the other survey report
and referring the same he would contend that there is no
encroachment in terms of the same which is also produced
in the course of argument and the said report is also
annexed with the writ petition but not shown as annexure.
However, during the course of argument, he relies upon
the same and contends that Annexure-H joint survey
report is erroneous. The counsel would also contend that
the petitioner has not encroached any area and she is
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ready to even comply with the undertaking before the
Court. If any encroachment and joint report in terms of
Annexure-H is also erroneous.
15. Per contra, learned AAG would contend that
when this Court passed an order in W.P.No.103168/2018
to hold joint survey and accordingly, joint survey is also
conducted and panchanama dated 07.06.2018 and
14.06.2018 are drawn in the presence of the parties and
joint survey is also by the concerned forest department.
In the presence of petitioner and now she cannot contend
that the same is not in accordance with law. Learned AGA
brought to the notice of this Court Annexure-H and would
submit that the same very clear regarding encroachment
and details are also given in terms of Annexure-H that
there is encroachment. He would also bring to the notice
of this Court the letter addressed by the petitioner herself
on 20.10.2018 wherein also she has categorically
undertaken that the land which is in her occupation comes
within the forest area but the stones which have been put
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are outside the area and also contend that she has spent
an amount of Rs.2.5 crores and constructed two cottages,
generator and security room also there within that area.
Based on the approved plan and permission, made a loan
of Rs.12 crores. If the structure is demolished she would
suffer loss and the same is not her mistake and hence,
requested to save the existing building and limit the same
to the extent of 7 acres 7 guntas and modify the same and
vacant land can be given to the forest area and this letter
is given to the Deputy Conservator of Forest and copy is
also enclosed to the Assistant Conservator of Forest and
there is an encroachment dated 29.10.2018 to that effect
and the letter is signed on 25.02.2018 and in view of the
said letter, the counsel for petitioner cannot contend that
there is no any encroachment.
16. On perusal of the judgment relied upon by the
learned AAG, it is noticed that the discussion was made
with regard to Article 32 and 21 of the Constitution of
India regarding protection and conservation of forests and
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at paragraph 5 of the judgment a direction was given that
each State Government should constitute an Expert
Committee and to take to clear all encroachments.
17. Learned AAG also relied upon the judgment of
this Court in R.F.A.No.988/2013 disposed of on
06.01.2021 wherein this Court confirmed the judgment of
the Trial Court with regard to clearing encroachment and
contend that now the petitioner cannot dispute the joint
survey and the same is conducted in terms of the order
passed by this Court. Hence, no grounds are made out by
the petitioner to quash the impugned order.
18. Having heard the petitioner's counsel and also
the learned AAG for respondents, and also considering the
principles laid down in the judgment as well as material on
record, the following points would arise for consideration:
1) Whether the order passed by the respondent as per
Annexure-H requires to be quashed by issuing writ
of certiorari as prayed in W.P.No.103138/2018?
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2) Whether the impugned order passed by the first
respondent Appellate Authority requires to be
quashed as per Annexure-J by issuing writ of
certiorari?
3) What order?
19. Reg: Point Nos.1 and 2 :
Counsel appearing for the petitioner in
W.P.No.103168/2018 has produced the sale deed for
having purchased the property to the extent of 7 acres 7
guntas in Sy.No.12A/1 which is not in dispute. It is also
not in dispute that conversion order was passed and also
project was approved. The Gram Panchayat was also
issued licence for construction of 14 cottages for tourist
hospitality. It is also not in dispute that The Bank of
Baroda, Dharwad Branch sanctioned s loan of Rs.5 Crores
on 12.07.2016. The respondent No.2 forwarded a report
to the respondent No.1 indicating encroachment and also
an order has been passed on 27.10.2016 based on the
report. It is also not in dispute that this Court passed an
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order in W.P.No.103168/2018 vide order dated
26.04.2018 and the said order is very clear that joint
survey involving the forest department and revenue
department was conducted in the presence of the
petitioner. It is also not in dispute that the petitioner also
agreed and undertaken to vacate the encroached area, if
and when such encroachment is ascertained after proper
survey and marking the boundary since identifying the
encroached area and also taken note of the impugned
order dated 21.04.2018 and 23.04.2018 unilaterally
cancelled the licence on the ground that the petitioner's
resort and activities are running in the encroached area
belonging to the Government. Hence, this Court came to
the conclusion that the matter requires consideration and
Annexure-H was stayed and made it clear that joint survey
shall continue, the encroached area shall be earmarked
with proper boundary stones thereafter the petitioner shall
peacefully vacate the encroached area in terms of her
undertaking. It is also not in dispute that this Court made
it clear that the resort shall be run only within the
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boundaries of Sy.No.12A/1 to the extent of 4 acres 36
guntas since the conversion order passed to the said
extent.
20. It is important to note that in
W.P.No.106142/2023, an order has been sought before
this Court setting aside Annexure-J confirming the joint
survey and to remove the encroached area.
21. Having perused the material on record, it is the
contention of the petitioner that she has not encroached
an inch of area and there was a grievance of the petitioner
that earlier survey dated 28.02.2018 is not proper and
hence, approached this Court. Immediately after
approaching this Court, Annexure-H was stayed and this
Court ordered to hold joint survey and joint survey was
also conducted. Now in W.P.No.106142/2023, the same is
also produced as Annexure-H. It is also important to note
that the respondents have relied upon the documents in
statement of objections in both the writ petitions and the
fact that the property was converted and permission was
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given to run resort is also not in dispute. The question
before this Court is only encroachment of forest land is
concerned. Annexure-H is also very clear that the joint
survey is conducted and extent of 7 acres 7 guntas was
identified by showing the black line which indicates the
outer boundary of Sy.No.12 and also red color line
indicates outer boundary of physical possession of the
petitioner which indicates encroached area. The
encroachment made in forest land to the extent of 1 acre
14 guntas including compound wall, 2 cottages, one
generator shed and security room. So also the
encroachment in the river bed of Kali to the extent of 19
guntas 3 anas and so also forest land encroached by RTC
holder of Sy.No.12a in the state forest land and the said
area measures an extent of 1 acre 14 guntas 4 anas. The
said encroachment includes roads, compound wall, two
cottages, one security room and one generator shed. The
area of encroachment in Sy.No.12a is 6 guntas 8 anas
which covers garden and flower plants. Further the
encroachment to the extent of 8 guntas 5 anas covers
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coconut trees and water pipelines and also encroachment
of 19 guntas 10 anas i.e., the adventure part. As per
Annexure-H, mark shown by ABCDEF is the boundary
stones fixed on the ground after measurement. While
confirming the original survey boundary stones of
Sy.No.12 of Badagunda village. The Surveyors also relied
on the existing stones of Sy.No.1, 2, 3 of Badagunda
village which is 1345 meters away from the Sy.No.12 and
the GPS coordinates of the same and is also recorded on
the spot and mentioned in the sketch as a supporting
reference.
22. It is also important to note that the counsel
appearing for the petitioner relies upon other report. On
perusal of other report relied upon by the petitioner's
counsel, it is noticed that the same also indicates
encroachment and the contention that no such
encroachment cannot be accepted. It is also important to
note that the petitioner has given a letter to the Assistant
Conservator of Forest dated 20.10.2018 but the signature
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found on the said letter is dated 25.10.2018 wherein also
it is categorically mentioned that in terms of joint survey,
the land to the extent of 1 acre 14 guntas comes within
the forest area, she has invested Rs.2.5 crores for
construction of cottages, generator shed and other
building and request is made to provision to retain that
structure and restrict her land to 7 acres 7 guntas and
modify the survey No.12A sketch and take the remaining
land of Sy.No.12 to the forest department. Having taken
note of the said letter dated 20.10.2018 placed before the
Court, it is very clear that even the petitioner has admitted
that in terms of joint survey conducted by the forest
department including revenue department, she has utilized
1 acre 14 guntas of land which comes within the forest
area and hence, it is clear that there is an encroachment
and contention of the petitioner's counsel that there is no
any encroachment cannot be accepted.
23. Even before this Court while getting an interim
order in W.P.No.103168/2018, an undertaking was given
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to voluntarily remove the encroachment but now the
submission of the petitioner's counsel is against the
material on record. When such being the case, I do not
find any force in the contention of the petitioner's counsel
that there is no encroachment. Annexure-H is also based
on the direction of this Court to conduct joint survey and
the same was conducted, petitioner was very much
present at the time of conducting survey and now she
cannot dispute Annexure-H.
24. However, taking note of the order passed by
the respondent in W.P.No.103168/2018, when the
property was converted, project was approved and licence
was given to run resort in the area of converted land, the
respondent cannot withdraw the permission. Mere
encroachment of portion of forest land, the entire
licence/permission cannot be withdrawn and the restriction
can be imposed to clear the encroachment and permit the
petitioner to run the resort within the premises of 7 acres
7 guntas which the petitioner has claimed and not more
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than that subject to conversion of remaining land of
petitioner since only 4 acres 36 guntas is converted.
Hence, W.P.No.103168/2018 is to be allowed quashing
Annexure-H and modifying the same to run the resort
within the area of 7 acres 7 guntas of land which is owned
by the petitioner.
25. In W.P.No.106142/2023, the petitioner has
pleaded that she has invested crores of rupees by availing
loan from the bank for starting the resort after obtaining
the permission from the concerned department and if it is
ordered to be closed as per Annexure-H to
W.P.No.103168/2018, it affects the right of the petitioner.
26. The relief sought in W.P.No.106142/2023
questioning Annexure-J which is an order passed by the
appellate authority and when this Court directed to hold a
joint survey, accordingly survey was conducted by the
forest department and revenue department and mahazar
was also drawn on 07.06.2018 and 14.06.2018 to that
effect. All the parties were present while conducting the
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survey and accordingly Annexure-H is prepared. The same
is questioned before the appellate authority and appellate
authority while passing the order in terms of Annexure-J
dated 29.09.2023, taken note of the fact that Section
64(A)3 of the Forest Act as well as the fact that earlier
mahazar was incomplete. Hence, this Court came to the
conclusion that a joint survey has to be conducted. When
the petitioner also participated in the said survey and
thereafter also given letter as per letter dated 20.10.2018
wherein also admitted that certain extent of land comes
within the forest area and request was made to substitute
the same by taking property of the petitioner which was
not used and also request was made to protect the
investment made by the petitioner in constructing the
building. The appellate authority i.e., respondent No.1
made a discussion that with regard to the contention taken
by the petitioner that the petitioner has not encroached
the same but the counsel during the course of argument
made a submission that stone which was available has
misdirected in identifying the property and the area shown
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in A,B,C,D,E,F as per Annexure-H is not correct and the
said contention cannot be accepted consequent upon the
letter given by the petitioner herself before the Assistant
Conservator of Forest and Deputy Conservator of Forest
subsequent to joint survey. The appellate authority has
also taken note of the direction of this Court in
W.P.No.103168/2018 wherein an order was passed and
also taken note that Deputy Commissioner who passed an
order on 29.05.2018 consequent upon the order passed by
this Court and notice was also given on 05.06.20418 and
taking note of the joint survey, mahazar was drawn.
27. It is not the contention of the petitioner that
she was not the part of the said joint survey and the order
passed by the appellate authority in terms of Annexure-J
is very clear that on 07.06.2018 and on 14.06.2018
officials and parties have appeared, survey was conducted
and also used Electronic Total Station equipment and chain
system for making measurement and when such being the
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case, the order impugned cannot be quashed as
contended by the petitioner.
28. It is also important to note that there is a clear
identification of the property in terms of Annexure-H and
also in the case of T.N. Godavarman Thirumulkpad
(supra), direction is given to the concerned State to
identify the property and acquire the encroached land of
forest. In the case on hand, when the joint survey is clear
that 1 acre 33 guntas of land of forest department was
encroached, the appellate authority has rightly passed an
order.
29. The contention of the learned AAG that the
petitioner has not only encroached the land of forest
department but also encroached the area of Kali river bed
and also 3 acres and 12 guntas of Survey No.128 which is
owned by Karnataka Power Corporation, a Government of
Karnataka undertaking, cannot be considered in this Writ
Petition as the said issue is not the subject mater of these
writ petitions before this Court and the same is only
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identified through the joint survey and the concerned to
take steps with regard to the said aspect. Hence, the
same cannot be considered in these writ petitions.
30. It is also important to note that even the
petitioner was also undertaken voluntarily to clear the
encroachment and now the petitioner cannot blow hot and
cold hostiling the earlier undertaking. Hence, I do not find
any error in the order dated 29.09.2023 as per Annexure-
J. Hence, the petitioner is not entitled for any relief of
quashing Annexure-J as contended in the petition and I
answer the points accordingly.
31. In view of the discussions made above, I pass
the following:
ORDER
(i) W.P.No.103168/2018 is allowed.
(ii) The order dated 21/23.04.2018 passed by the respondent No.1 as per Annexure-H in canceling the licence granted to the petitioner is quashed permitting the petitioner to run the
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(iii) Petitioner is also directed to vacate the encroached area voluntarily on her cost and if the same is not vacated, the respondents are directed to clear the encroachment and submit a report before this Court within two months from today.
(iv) W.P.No.106142/2023 is hereby dismissed.
Sd/-
(H.P. SANDESH) JUDGE Naa CT-MCK List No.: 1 Sl No.: 87