Karnataka High Court
Bangarayya S/O. Kurumayya vs The State Of Karnataka on 1 April, 2013
Author: Dilip B.Bhosale
Bench: Dilip B. Bhosale
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH, AT DHARWAD
DATED THIS THE 01ST DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE DILIP B. BHOSALE
WRIT PETITION No.76572/2013 And
WRIT PETITION Nos.76602-626/2013 (GM-RES)
BETWEEN:
1. Bangarayya, S/o Kurumayya,
Age: 32 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
2. Smt. Lamani Sonamma, W/o Laxman,
Age: 48 years, Occ: Household work,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
3. Rukminibai, W/o Pandurang Nayak,
Age: 36 years, Occ: Household work,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
4. S. Durga Nayak, S/o Shankar Nayak,
Age: 53 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
5. Fakirappa, S/o Hussainappa,
Age: 35 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi, Dist: Koppal.
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6. Yallappa, S/o Bailappa,
Age: 55 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
7. Chape Parashuram, S/o Hanumappa,
Age: 48 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
8. Smt. Yamunamma, W/o Virupaxi,
Age: 48, Occ: Coolie and Household work,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
9. Smt. Sofiya Begum, D/o Mahbuji Begum,
Age: 20 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
10. Sakkubai, W/o Satyanarayan,
Age: 35 years, Occ: Household work,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
11. M.S.Saraswati, W/o M.S.Sharma,
Age: 58 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
12. Yamanappa, S/o Yamanappa,
Age: 63 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
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13. Kanakappa, S/o Hanumantappa Kustagi,
Age: 56 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
14. Kanakappa, S/o Sakareppa,
Age: 73 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
15. A. Ramanna, S/o A. Venkayya,
Age: 42 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
16. Smt. Agasaru Laxmidevi, W/o Ramanna,
Age: 37 years, Occ: Household work,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
17. Guruvamma, W/o Doddaramayya,
Age: 48 years, Occ: Household work,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
18. G. Muralidhar, S/o G. Ranga Rao,
Age: 24 years, Occ: Agriculture,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
19. Rangarao, S/o Subbrao,
Age: 32 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
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20. Durgappa, S/o Sangappa,
Age: 48 years, Occ: Coolie,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
21. Smt. Hanamavva, W/o Huligeppa,
Age: 42 years, Occ: Household work,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
22. Hulagappa, S/o Duragappa,
Age: 48 years, Occ: Agriculture,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
23. Anjanappa, S/o Chape Hanumappa,
Age: 52 years, Occ: Agriculture,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
24. Parusharam, S/o Hanumantappa,
Age: 48 years, Occ: Agriculture,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
25. Shekarappa, S/o Phakiranayak,
Age: 31 years, Occ: Agriculture,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
26. Hulagappa, S/o Malappa Harijan,
Age: 51 years, Occ: Agriculture,
R/o VirupauraGadde, Tq. Gangavathi,
Dist: Koppal.
- Petitioners
(By Sri V.M.Sheelvant, Advocate)
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AND:
1. The State of Karnataka,
By its Secretary,
Revenue Department,
M.S.Buildings, Bangalore.
2. The Deputy Commissioner,
Koppal District.
3. The Tahasildar,
Gangavati Tq.
Dist: Koppal.
4. The Divisional Forest Officer,
Forest Office Koppal,
Tq. Koppal.
5. Range Forest Officer,
Gangavathi Range,
Gangavathi.
- Respondents
(By Smt. K. Vidyavathi, A.G.A.) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondents not to demolish the houses of the petitioners situated in Virupapura Gadde village of Gangavathi Taluka, Koppal District.
These Writ Petitions coming for further orders on this day, the court made the following:
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PC :
These writ petitions filed under Articles 226 and 227 of the Constitution of India seek direction to the respondents not to demolish the petitioners' houses situated at Virupapuragadde village of Gangavathi taluka, Koppal District.
2. Petitioners claim that the houses were allotted to them in the "Janatha House" scheme by the Grama Panchayath. Further, they claim that the Grama Panchayath issued receipt books to all the petitioners which further show that the janatha houses were allotted to them, long back and that they have been paying taxes and residing there with the families.
3. Sri V.M.Sheelvant, learned Counsel for the petitioners, at the outset, invited my attention to the extracts of receipt books to contend that the houses were allotted to the petitioners long back and they have been 7 paying taxes. He submitted that the respondents cannot initiate any action and/or take action of demolition without following the due process of law. He then submitted that these houses are not in the reserved forest, as claimed by the respondents in their statement of objections. Similar contention was raised on 25.03.2013, and hence this Court had issued direction to conduct joint survey of the houses so as to find out whether they are in the reserved forest. The relevant portion of order dated 25.03.2013 reads thus:
"Petitioner Nos. 1, 4 and 5 on behalf of all the petitioners and respondent Nos. 3, 5 and the Surveyor shall have a joint visit of the spot where the houses of petitioners are situated. If necessary, they shall measure the land to ascertain whether they are in the forest in the presence of the petitioner Nos. 1, 4 and 5 and submit their report on the next date. They are directed to prepare report on the spot and obtain signatures of petitioner Nos. 1, 4 and 5 and respondent Nos. 3, 5 and the Surveyor shall also sign the same."8
4. As per the direction issued on 25.03.2013, a joint survey was conducted. Today, learned Government Advocate has placed a report on record for my perusal, duly signed by all, alongwith supporting documents. The survey report clearly reveals that the houses are situated in Sy.No.49 and that the said survey number is a reserved forest area of Virupapuragadde village.
5. Sri V.M.Sheelvant, learned Counsel for the petitioners vehemently submitted that notices under Section 64-A of the Karnataka Forest Act (for short 'the Act') were not issued to all the petitioners. In support, he invited my attention to paragraphs 4, 5, 6 and 7 to contend that notices under Section 64-A and the orders passed in pursuance thereof were only against petitioner Nos. 4, 11, 12, 14, 23, 24 and 26. He submitted that the respondents changed their statements/stand from time to time, not only in respect of number of the petitioners against whom the order under Section 64-A has been 9 passed, but also in respect of total area of Sy.No.49. He invited my attention to Annexure-R1 to contend that it shows Sy.No.49, measuring 248.26 acres, whereas Annexure-R2 shows area of Sy.No.49 measuring 244.36 acres.
6. It is in this backdrop, I have perused the entire material before the Court.
7. The case of the respondents is that the houses of the petitioners are in Sy.No.49 which is a "reserved forest" and that it is also a "protected area" declared under the provisions of the Karnataka Ancient and Historical Monuments and Archeological Sites and Remains Act, 1961 (for short 'the Historical Monuments Act) and in view thereof the petitioners' houses will have to be removed/ demolished. It was submitted that the respondents have followed the due process of law, namely, the proceedings under Section 64-A of the Act.
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8. I have perused the notification dated 28th September 1967 (Annexure-R1) declaring Sy.No.49, measuring 248 acres 26 guntas, as reserved forest. Since this notification is not under challenge and subject matter of the writ petition, I need not examine the same any further. As a matter of fact, issuance of this notification is not in dispute. It clearly shows, Sy.No.49 is a reserved forest. Similarly, my attention was also invited to notification dated 22nd October 1988 (Annexure-R8) issued under the provisions of the Historical Monuments Act. The said notification and schedule (I) (Annexure-R9) clearly show that Sy.No.49 is a protected area. Section 20 of the Historical Monuments Act provides that no person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining, quarrying, excavating, blasting or any operation of a like nature on protected area. This notification also is not a subject matter of the petitions. 11 According to the respondents, the petitioners have never challenged the said notification nor have they disputed it in the writ petition or by filing re-joinder to the statement of objections filed by them.
9. That apart, I have also perused the orders passed under Section 64-A of the Forest Act, against the petitioners. The first order is in Forest Case (Offence) No.121/2002-03 (Annexure-R4) dated 17.02.2009. It is against petitioner Nos. 2, 3, 4, 8, 12, 13 and 25. The second order, dated 17.02.2009 in Forest Case (Offence) No.105/2002-03 (Annexure-R5), is against petitioner Nos. 5, 9 and 11. The third order, dated 15.09.2004 in Forest Case (Offence) No.51/2002-03 (Annexure-R6), is against petitioner Nos. 23 and 26. The fourth order, dated 17.02.2009 in Forest Case (Offence) No.118/2002-03 (Annexure-R7), is against petitioner No.7. The orders in Forest Case (Offence) Nos.135/2002-03 and 122/2002-03 are not placed on record with the statement of objections, 12 but I have perused them when were produced before the Court. They are dated 31.12.2004 and 17.02.2009 respectively, against petitioner Nos. 16, 6, 18, 19, 20, 21 and 22. None of these orders are challenged by the petitioners till this date. The record shows that the respondents have passed similar orders in respect of the remaining petitioners also in the names of other family members of those petitioners. The respondents have so demonstrated by filing a list of all the petitioners as document No.2 on record with their memo dated 01.04.2013.
10. I have perused the orders. It is clear that the orders under Section 64-A of the Forest Act were passed against the petitioners long back and they kept quiet for all these years for the reasons best known to them. Moreover, there is no challenge to the said orders even in the present writ petitions. Section 64-A of the Act provides for summary eviction of any person who is unauthorisedly 13 occupying the land in reserved forest. It is not the case of the petitioners that the orders under Section 64-A were passed without following the due procedure or principles of natural justice. When the orders under Section 64-A were brought to my notice, I asked the learned counsel for the petitioners whether the petitioners would like to challenge those orders in appropriate proceedings, he stated that he has no instructions and proceeded to argue the petitions on merit.
11. From perusal of the notifications issued under the provisions of the Forest Act and so also the Historical Monuments Act, it is clear that the land Sy.No.49 where the houses of petitioners are situated is not only reserved forest, but it is in protected area. Insofar as the claim of petitioners that these houses were allotted to them in janatha house scheme by the Grama Panchayath is concerned, is also of no avail to the petitioners, since they have not added the Grama Panchayath as party to the 14 present writ petitions nor have they demonstrated the authority of the Grama Panchayath to allot such houses in the reserved forest/protected area. If at all, their claim of allotment is correct, it is open to the Grama Panchayath to allot them alternative sites for constructing houses. Under any circumstances, the petitioners cannot claim protection in writ petition under Article 226 of the Constitution of India, when it is clearly demonstrated with the sufficient material on record that the houses are in the reserved forest and the protected area. In the result, the petitions deserve to be dismissed outright. Order accordingly.
In view of dismissal of the writ petitions, the interlocutory applications, if any, also stand disposed of.
Sd/-
JUDGE mkc