Karnataka High Court
Dr Bishan C M vs The Chief Conservator Of Forests on 5 April, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.15741 OF 2019 (GM - FOR)
BETWEEN:
DR.BISHAN C.M.,
AGED ABOUT 46 YEARS,
S/O MR.C.A.MONNAPPA
RESIDING AT: PNM HOSPITAL
GONIKOPPAL
KODAGU DISTRICT - 571 213.
... PETITIONER
(BY SRI KIRAN V.RON, ADVOCATE)
AND:
1. THE CHIEF CONSERVATOR OF FORESTS
KODAGU CIRCLE,
MADIKERI
KODAGU - 571 201.
2. THE DIVISIONAL FOREST OFFICER
(VIRAJPET CIRCLE)
VIRAJPET - 571 218
KODAGU DISTRICT.
3. THE ASSISTANT CONSERVATOR OF FORESTS
VIRAJPET
KODAGU DISTRICT - 571 218.
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4. THE RANGE FOREST OFFICER
MAKUTTA RANGE
VIRAJPET DIVISION - 571 218
KODAGU DISTRICT.
... RESPONDENTS
(BY SRI B.V.KRISHNA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD:25.3.2019 PASSED BY THE R-1 IN APPEAL NO.CR
21/2017-18 [ANNEXURE-M]; ALLOW THE APPLICATION
DTD:19.6.2018 FILED BY THE PETITIONER IN APPEAL NO.CR
21/2017-18 FILED BEFORE THE R-1 [ANNEXURE-J] AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question order dated 25-03-2019 passed by the 1st respondent rejecting the application of the petitioner for use of pathway that he claims to be using from time immemorial.
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2. Heard Sri Kiran V. Ron, learned counsel appearing for the petitioner and Sri B.V.Krishna, learned Additional Government Advocate appearing for the respondents.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The petitioner claims to be the absolute owner to an extent of 15.51 acres of land in Sy.No.538 of Kedamulloor Village, Virajpet Taluk, Kodagu District having purchased the same in terms of a registered sale deed on 21-11-2011. It is the claim of the petitioner that the said land is a revenue land forming part of Enclosure 1 to Gazette Notification dated 24-06-1908 and the said property has always been used for coffee cultivation and is being used for coffee cultivation as on date. It is the case of the petitioner that access to the property, in terms of the aforesaid Gazette notification dated 24-06-1908 is crystallized, it being reflected to be a 6 feet wide road for men and cattle. In the year 2015 an inquiry is sought to be conducted at the hands of the Department of Forest under Section 64A of the Karnataka Forest Act, 1963 (hereinafter referred to as 4 the 'Act' for short) against the petitioner. A notice comes to be issued on 09-10-2015 to the petitioner alleging that he has encroached forest land and during the course of inquiry orders were passed for conduct of joint survey and the joint survey was partially done on 06-07-2017. The petition narrates that it is due to heavy rain, the survey could not be completed then. Pending inquiry/survey, access to the property of the petitioner was prevented on 16-08-2017 by respondents 2 to 4 - the Divisional Forest Officer, the Assistant Conservator of Forests and the Range Forest Officer by locking the gate that lead to the road and the road that lead to the property of the petitioner.
4. Aggrieved by the said action, the petitioner knocked the doors of this Court in Writ Petition No.42224 of 2017 seeking a direction by issuance of a writ in the nature of mandamus for non- obstruction by the respondents. This Court did not grant any interim relief, but taking note of the pending inquiry, the petitioner was permitted to have foot access to his property, but not vehicular access till completion of inquiry. Challenging the said order, the petitioner files writ appeal in Writ Appeal No.6442 of 2017. The 5 Division Bench disposing the appeal permitted the petitioner to use the road to his property till completion of the inquiry, in modification of the order that was passed by the learned single Judge. It appears that contempt petition was also preferred for not complying with the order passed by the Division Bench and completion of inquiry results in passing of the impugned order dated 25-03-2019 by which it is held that the petitioner cannot use the road, as it is in encroachment of forest land. It is this order that drives the petitioner to this Court in the subject petition.
5. The learned counsel appearing for the petitioner would contend with vehemence that the Forest Department has been partisan towards the petitioner and the property of the petitioner, as officials of the Forest Department themselves ply lorries carrying logs/timber on the said road, as also patrolling jeeps now and then, but block the way of the petitioner and there is no access road anywhere for the petitioner to get into his property. He would place strong reliance upon the Gazette Notification of the year 1908 to contend that pathway was available then, which was recognized in the Notification and now there is a 8.5 feet road existing which is 6 motorable. He would submit that the petitioner be permitted use of vehicle within the parameters of the Notification declaring permitted uses in the sensitive zones.
6. On the other hand, the learned Additional Government Advocate would vehemently refute the submissions to contend that transportation of timber is also banned now and there are no vehicles that move around in the said road. The petitioner cannot claim strength of a notification of the year 1908, as forest and forest land are now sought to be mandatorily protected by orders of the Government. It is not only forest and forest land alone but ecology and environment also that the Government has to look into. Therefore, the learned Additional Government Advocate would submit that the petition be dismissed, as it is after an inquiry orders have come to be passed.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
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8. To consider the case of the petitioner, it is germane to take a little walk in the history. Government of India in the Department of Commerce and Industry issued a notification in the Coorg District Gazette on 24-06-1908 declaring the boundaries of the forest under Section 19 of the Indian Forest Act (VII of 1878) by placing a schedule to the Notification in the enclosure. The notification reads as follows:
"THE COORG DISTRICT GAZETTE, APRIL 1, 1908 PART-1 Bangalore, the 24th June 1908 No.58. The Chief Commissioner of Coorg is pleased to declare under the provisions of Section 19 of the Indian Forest Act (VII of 1878) that from the 15th August 1908, the area, the boundaries of which are set forth in the schedule appended to this notification will be constituted a Reserved Forest.
SCHEDULE
Province Taluk Name of Description of
Forest Boundaries
Coorg YadenalkNad Kerti North: Starting
from
point on the trijunction of the Yedenalknad, Padinalknad taluk boundary and of the reserve forest boundary, the line follows the boundary between Survey Nos. 533 and 431, South - eastwards and then proceeds along the southern boundary of Survey Nos.526, 528,510 and 396 of the Kedamullur Village, to the Heggala Village boundary; thence south-eastwards along the boundary of Sy.No.123-1 for 2 miles and 1½ furlongs, eastwards excluding Survey nos.211-A, 209, 208 and 210; it then follows the southern boundaries of Survey Nos. 207, 205, 194, 191 and 123-1 all of the Heggala Village, to the Arji village 8 boundary; thence it proceeds for 4½ furlongs along three hill tops south-eastwards to the southern edge of the Perambadi tank joining the Virajpet-Cannanore High Road.
East:- The Government road as far as the Malabar District Boundary which this road crosses at the Kull hole bridge.
South:- The Malabar District boundary westwards as far as it trijunction with the Padinalknad and Yedenalknad taluk boundaries.
West:- The Padinalknad taluk boundary northwards to the starting point.
Remarks A. The following areas enclosed within the reserve have been admitted as, either free from reservation, or subject to various rights:-
Enclosure-I:- Mondoli-Porakadu coffee saguvalli malle, Area 75.91 acres consisting of Survey Nos. 536, 537 and 538 of Kedamullur Village. The rights for these malles are as follows:
(i) Survey Nos. 536 and 537, the Mondali malle having (a) right of ingress and egress by P.R.W.Nos. 2 and 3
(b) right to shoot within the malle subject to the provisions of the India Arms Act.
(c) right to take minor produce from the malle for wet cultivation.
(ii) Survey No.538, the Porakadu malle having
(a) right of ingress and egress by P.R.W.Nos.2 and 3.
(b) right to take minor produce from the malle for wet cultivation.9
Enclosure-II:- Babbiradu coffee saguvalli malle, area 243.87 acres consisting of Survey Nos. 529-1 and 529-2 of Kedamullur village with undermentioned rights:-
(a) right of ingress and egress by P.R.W. No.4
(b) right to shoot within the malle subject to the provisions of the Indian Arms Act.
(c) right to take minor produce for wet cultivation.
Enclosure-III: Karriara Banna Devarakadu, area 668.80 acres Survey Nos. 531 of the Kedamullur village with the undermentioned rights;
(a) right of ingress and egress by P.R.W. No.3
(b) right to halt in the reserve on the way to the banna.
(c) right to build temporary sheds taking materials such as water, creepers and leaves for the time being;
(d) right to cook and to present offerings during the months of January to May both months included.
Remarks B The following rights of way are admitted within the reserve.
P.R.W. No.1. Kedamullur - Palangala path, 3 feet wide for men only: enters the reserve at the southern end of Survey No.526 of Kedamullur village, passes westwards to Palangala village, Padinalknad Taluk.
P.R.W.No.2: Kedamullur - Mandoli Porakadu malle path, 3 feet wide for men only branches from P.R.W.No.1 ante and lead to Enclosure No-1.
P.R.W.No.3: Kedamullur - Malabar path, 6th feet side for men and cattle: enters the reserve at Survey No.526 and passes along the western boundary of the Karriara banna Survey No.531 (Enclosure No.III) to Survey No.538 (Enclosure No.1) and from thence to Malabar to the Byathur Temple. 10
P.R.W. No.4: Tomara path 3 feet wide for men only:
enters the reserve at the south-western end of Survey No.396 of Kedamullur village and passes to Enclosure No.II.
P.R.W. No.5. Heggala-Malabar path, 4 feet wide for men and cattle: enters the reserve on the southern boundary of Survey No.123-1, passes through it first westwards then south wards along the left bank of the Kull hole river which it crosses proceedings on the right bank to Malabar.
Remarks-C Free grazing to the extent of 19 head of cattle by virtue of order published in Notification No.55, dated the 3rd November, 1891, is permitted to Bilimaggada Badra and Dasi of the Arji village for their wet cultivation Survey No.196 of the Heggala village called Kolimanda warg.
The reservation is free of all rights, save those described above."
The notification recognizes Survey No.538. The notification further recognizes the right of ingress and egress by P.R.W. Nos. 2 and 3. P.R.W. 2 was the right of pathway of a 3 feet wide road for men only and P.R.W. 3 was for a pathway which was for 6 feet wide for men and cattle. The petitioner was not in the picture at any point in time. The petitioner was by way of a registered sale deed dated 21-11-2011 purchased the property from one C.P. Aboobackar. After the petitioner coming in possession of the property in terms of the aforesaid sale deed, proceedings against the petitioner were taken up by the Forest Department alleging encroachment by the 11 petitioner. A notice comes to be issued seeking to conduct an inquiry under Section 64A of the Act. The moment inquiry was sought to be conducted, the petitioner knocked the doors of this Court in Writ Petition No.42224 of 2017 connected with Writ Petition No.42402 of 2017. This Court on 10-10-2017 passed the following interim order.
"ORDER The respondents have filed their objection statement to the petitions and the petitioner has also filed the rejoinder.
Considering the fact that the issue which arises for consideration is relating to the access to the property claimed by the petitioner through the forest land and also taking note that the respondents in any event have for the present permitted the access by foot and even though the learned counsel for the petitioner contends that the distance is about 3 kms, taking note of the fact that Section 64 enquiry is pending before the competent authority, at this stage, I do not find it appropriate to grant vehicular access.
However, the respondents shall take all steps to complete the enquiry which is pending in an expeditious manner, but not later than two months notwithstanding the pendency of these petitions. If at all during the pendency of the enquiry, if for any reason the vehicular access is to be permitted, notwithstanding the interim order being rejected in that regard by this Court, the respondents may take note of such request and if for any specific purpose, if the respondents while exercising their discretion find that such access is to be permitted, it is open in that regard to be considered by the respondents.
List in 'B' Group in usual course."12
The Court recorded that the respondents have in any case permitted access by foot and even though the learned counsel for the petitioner contends that the distance is about 3 kms, taking note of the fact that the inquiry is still pending, no vehicular access was permitted. This was challenged by the petitioner before the Division Bench in Writ Appeal Nos.6442-6443 of 2017. The Division Bench on 15-11-2017 disposed of writ appeals by the following order:
"JUDGMENT Ag.CJ (Oral):
1. By consent of learned Counsel on both sides, the appeals are finally heard on merits and are being disposed of by this order.
2. Having regard to the facts of the case, we deem it appropriate to permit the appellant to use Schedule 'B' road to have access to Schedule 'A' property till completion of the enquiry referred to in the show cause notice dated 09.10.2015, a copy of which is produced as Annexure-R9 by the Assistant Conservator of Forest, Virajpet. Ordered accordingly. The aforesaid enquiry is under Section 64-A of the Karnataka Forest Act, 1963. Schedule 'A' property and Schedule 'B' road referred to above are described as under the memorandum of appeal:
"SCHEDULE A PROPERTY All that piece and parcel of coffee cultivated property bearing Sy.No.538, measuring 15.51 acres in kula No.187, Kedamulloor Village, Virajpet Taluk, Kodagu District, and bounded on the:
East by: Stream and Sy. Nos 532 and 539 13 West by: Sy.Nos.540, 539 and 536 North by: Sy.No.537 South by: Road, Sy.Nos.539 and 540 SCHEDULE B ROAD
Road commencing from Sy.No.526 to Sy.No.538 measuring approximately 3 kms and passing through Sy. Nos.531, 532 and 538 and thence to Kerala via Sy.No.540, leading to Baithur Temple (presently Vayathur in Kerala)."
3. The writ appeals stand disposed of in the above terms in modification of the interim order dated 10.10.2017 passed by the learned Single Judge which is impugned herein. In view of disposal of the appeals, IA No.1/2017 does not survive for consideration; it stands disposed of accordingly.
Appeals disposed of."
The Division Bench permitted vehicular access till completion of inquiry in terms of show cause notice issued on 09-10-2015. The order was not complied with and, therefore the petitioner had to invoke the contempt jurisdiction of the Court as well and later it appears that the petitioner was permitted vehicular access till completion of inquiry. The petitioner again approaches this Court seeking a direction for speedy disposal of the interim application dated 19-06-2018 that was pending before the Authority with regard to usage of vehicular access to his property. This Court by an order dated 05-03-2019 in Writ Petition No. 9862 of 2019 14 directed the Authority to pass orders on the interim application for vehicular access within 2 weeks from 05-03-2018, if not already passed.
9. The result is the impugned order. Noticing the earlier notifications and subsequent notifications issued by the State Government, as also the judgments of the Apex Court from time to time in cases concerning preservation of Forest Flora and Fauna and Forest Act being special law, the appeal is dismissed on the ground that the appellant/petitioner did not produce any document in appeal to show that the right provided in the reserve forest that was notified in the year 1908 was enlarged by the Government. The petitioner's right to vehicular access was thus denied. The denial of the right of the petitioner to use vehicular access to his property yet again is what drives the petitioner to this Court in this petition.
10. In the light of the claim of the petitioner for vehicular access and the allegation that it is a road which is not motorable, it becomes germane to notice the provisions of the Act to consider the case of the petitioner. Section 22 of the Act reads as follows: 15
"22. Power to stop ways and water courses in reserved forests.--(1) The Forest Officer may, with the previous sanction of the Chief Conservator of Forests by order notified in the official Gazette, stop any public or private way or water course in a reserved forest:
Provided that for the way or water course so stopped, another way or water course which is equally convenient, already exists or has been provided or constructed:
Provided further that no water course feeding a tank or other reservoir shall be stopped except after consulting the Executive Engineer having jurisdiction over such tank or reservoir.
(2) Any person aggrieved by an order under sub-section (1) may within ninety days from the date of publication of the order in the official Gazette, appeal to the 1[Karnataka Appellate Tribunal] and its decision thereon shall be final."
Section 22 empowers the State to stop ways and water courses in reserve forest provided that for the way or water course so stopped, another way or water course which is equally convenient, already exists or has been provided or constructed. The second proviso directs that no water course feeding a tank or a reservoir shall be stopped. The case at hand does not concern a water course, but a way.
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11. It becomes apposite to refer to the judgment of the Apex Court in the case of T.N.GODAVARMAN THIRUMULPAD V.UNION OF INDIA1 has held as follows:
".... .... ....
5. We further direct as under:
I. General
1. In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or plywood mills, and mining of any mineral are non-
forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith.
2. In addition to the above, in the tropical wet evergreen forests of Tirap and Changlang in the State of Arunachal Pradesh, there would be a complete ban on felling of any kind of trees therein because of their particular significance to maintain ecological balance needed to preserve bio-diversity. All saw mills, veneer mills and plywood mills in Tirap and Changlang in Arunachal Pradesh and within a distance of 100 kms 1 (1997)2 SCC 267 17 from its border, in Assam, should also be closed immediately. The State Governments of Arunachal Pradesh and Assam must ensure compliance of this direction.
3. The felling of trees in all forests is to remain suspended except in accordance with the working plans of the State Governments, as approved by the Central Government. In the absence of any working plan in any particular State, such as Arunachal Pradesh, where the permit system exists, the felling under the permits can be done only by the Forest Department of the State Government or the State Forest Corporation.
4. There shall be a complete ban on the movement of cut trees and timber from any of the seven North-Eastern States to any other State of the country either by rail, road or waterways. The Indian Railways and the State Governments are directed to take all measures necessary to ensure strict compliance of this direction. This ban will not apply to the movement of certified timber required for defence or other Government purposes. This ban will also not affect felling in any private plantation comprising of trees planted in any area which is not a forest.
5. Each State Government should constitute within one month an Expert Committee to:
(i) Identify areas which are "forests", irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest;
(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and
(iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons.
6. Each State Government should within two months, file a report regarding:
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(i) the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership;
(ii) the licensed and actual capacity of these mills for stock and sawing;
(iii) their proximity to the nearest forest;
(iv) their source of timber.
7. Each State Government should constitute within one month, an Expert Committee to assess:
(i) the sustainable capacity of the forests of the State qua saw mills and timber-based industry;
(ii) the number of existing saw mills which can safely be sustained in the State;
(iii) the optimum distance from the forest, qua that State, at which the saw mill should be located.
8. The Expert Committee so constituted should be requested to give its report within one month of being constituted.
9. Each State Government would constitute a Committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status reports.
.... .... ...."
(Emphasis supplied)
The non-forest activity that the Apex Court considers are mining of minerals, cultivation of areca inter alia. What the petitioner is seeking is vehicular access to his property for agricultural activity. 19 It is also contended that the motorable road that is now in existence is being used by the Forest Department for patrolling. If vehicles could pass through the said road for patrolling by the Forest Department, the agricultural equipment vehicle could undoubtedly pass through the same road to the property of the petitioner, as it is admitted that there is no other access to the property of the petitioner. Therefore, Section 22 and its interpretation would come to the aid of the petitioner.
12. The contentions of the State is that they have power to change the rights of usage as envisaged in the 1908 Notification. It is the submission of the State that the Notification makes it very clear that it cannot be used for vehicular access. The contention belies their own activity, as the respondents do not dispute that the said road was used to carry timber and patrolling purposes. The State further defends the action of usage of the road by projecting it to be restricted only for usage by the officials. The petitioner is not wanting the road access to be released to all and sundry. He has a right, in the light of the petitioner being able to establish that usage of the property - schedule 'A' is accessible by the road - 20 schedule 'B'. If that be the right that flew for decades, the coupe road - schedule 'B', cannot be construed to be a non-forest activity. The depiction of it being a non-forest activity would run foul of what is observed by the Apex Court in the aforesaid judgment.
13. The purpose of restricting vehicles or vehicular activity is to develop naturally grown forest. The petitioner is wanting to use the road to enter his property for agricultural activity. In the light of the road being accessed by the Forest Department for patrolling and the right of the petitioner in terms of the Notification supra, the impugned action is rendered unsustainable. The unsustainability would lead to its obliteration. However, if the Forest Department would find that the petitioner is using the vehicular access in a manner that would endanger the environment or would create any ecological imbalance, it was always open to the department to initiate proceedings in accordance with law. In the light of the preceding analysis, the other prayer that is sought with regard to the application dated 19-06-2018 need not bear consideration, as it is unnecessary.
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14. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The impugned order dated 25-03-2019 passed by the 1st respondent in Appeal No.CR 21/2017-18 stands quashed.
(iii) A Mandamus issues to respondents 2 to 4 not to obstruct the movement of the petitioner on the schedule 'B' road as projected in the petition, unless situation warrants. A warranting situation can result in proceeding in accordance in law.
Consequently, I.A.No.2 of 2022 stands disposed.
Sd/-
JUDGE bkp CT:MJ