Karnataka High Court
Concord India Pvt Ltd vs The Range Forest Officer on 25 May, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
IN PHE HIGH COURT OF KARNA'IAKA Al BANGALORE
DATED IHIS THE 25L DAY OF MAY 2012
BEFORI
H( N B[ U MR. iU,lR U RAM MOH \N RF DDY
W!!TJT!TIoN Nc. 7200 QF2QO8 GM-FORJ
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WmT PETITIoN Nos. 2976566oF 20O9JGM-FO
WoQLP
BETWEEN:
CONCORD INDIA PVT LTD
FORMERL\' KNOWN AS STRYR IND
A LID
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FIRST FLOOR. EMBASS POINT
NO 150, INFANTRY ROAD,
BANGALORE 560 001
-
REP BY ITS DIRECTOR
MR NARPAJ S1NGH CR0 L
RARL\
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FY SRI DUN RO. 'R COUNSEL
)R M S & UNIt II
UNLRN F RDS F
RR1SH ARAJAPUUNM rU'
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M 13FiLDTNc IItN F FL'R:
IHE KARNATAKA INDLS'IRI L ART AS
DE'ELOPMENT BOARD,
14/3. SECOND FLOOR. RP BUILDING
NRUPATHLJNGA. ROAD
BANGALORE
REPPF'Sr'NTED E3\ 1T' CEO \D ML)
THE DIVISIOKAL RAILVvA\ MkNA(iER
SOUTH \kESTFRN RAIIW 1\
BANGALORE
L IN IrU',J b (.
SAN ENGINEERING & IOU MOTIF CL lID
P B NO 4802, WHITEFIELD ROAD
BANGALORE 560 048
BPL ELECTRONICS L1M TEL
/1 PALACE ROAD
BANGALORE 560001
BPL SANYO UTILITIES &
DYNAMIC HOUSE NO 64
CHURCH STREET
BANGALORE 560001
3PLSANY UIILITLS
\O 64 CHURCH ROAD
BANGALORE 560001
I3ANGAI ORE S6flOOi
BALL U ( DE US
12. WIPRO GE MEDICAL SYSTEMS PVT LIMITED
Al, GOLDEN ENCLAVE. AIRPORT ROAD.
BANGALORE 560 017
13. WIPRO GE MEDICAL SYSTEMS LIMITED,
Al GOLDEN ENCLAVE AIRPORT ROAD
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DO'J ku I
14, BHARATH1 BT LIMITED,
1740/A, MARUTHI TOWERS,
KODIHALLI, AIRPORT ROAD,
BANGALORE 560 017,
15, BHARATHI BT LIMITED,
1740/A, MARUTHI TOWERS:.
KODIHALLI, AIRPORT ROAD,
3ANGALORE 560 017.
16. WIPRO GE MEDICAL SYSTEMS LIMITED.
PLOT No.4, KADUGODI PLANTATION
INDUSTRIAL AREA.
SADARMANGALA,
BANGALORE 560 067.
17. UNIVERSAL SEMICONDUCTORS LIMITED,
565/4, 6TFI CROSS. 7TH MAiN ROAD,
HAL II STAGE,
BANGALORE 560 008.
1.8. ROCHAN (INDIA) LIMITED,
PLOT No5'A1, KADUGODI INDUSTRIAL. AREA.
WHITEF1ELD.
EANGALORE 560 066.
19. MiSS CHERIE COSMETICS PUT. LIMITED,
€.2, MAKER CHAMBERS -III,
NARIMAN POINT,
E3OIVI BAY 400 Q7
-'
:,
20. JALEX CONNECTOR SYSTEMS LIMiITED,
6A & 6B, KADUGODI INDUSTRIAL AREA,
WHITEFIELD RO.AD, MAHAE.EVAPURA POST,
BANGALORE 560 048.
HOLEX (INDIA) LIMITED.
PLUT No 6 A, ADARAMAN LA iDUSfR1A1
AREA KADUGODI.
BNGALORE 560 0€
S SUDEEP KLMAR
No 111 7 b "B" MAIN
91 B1OCK,JYNAGAR
BANGAI ORE 60 069
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I i I I \,} ' L.I'. 11V'D '
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No,477, (NEW No,29/0Ii, IT iFROSS.
WILSON GARDEN,
BANGALORE 56002
24 VINITE{A INDUSTRIES,
90/2. WHITEFIELD ROAD,
NEAR IOC BNARAYNAPURA,
BANGALORE 560 016 -
2 POLYPRINF,
3. KRISHNAMURTHY INDUSTRIAL AREA.
OLD MADRAS ROAD,
BANGALORE 60 01€
,26 MILAN PACKAGING,
21, NARAYAN RED DY NDL STRIAL AREA.
OLD MADRAS ROAD.
DOORVANI NA( AR PC V
BAN LORF 6 0
= SELL VLNUC
CPAL FL )DP
1 MIT LS
\o 43. SC TANPET
T3\" (L\L( ?E '60 05
30 SABARI SALTS,
P4(B), KSSIDC INDUSTRIAL ESTATE
MAHADEVAPURA,
BANGALORF 560 048
S1 F NI C HFMICAL S
P 1 A, KSSIDC INDUSTRIAL ARFA
MAHADEVAPI. RA,
BANOAI ORF 560 048
32 SUPRACHEM INDUSTRIES
SURAM', 11Th CROSS,
ST ANNES SCHOOl ROAD
RAMAMURTHY NAGAR,
BANOALORE 560 016
33 SRI VISHNU GAS AGENC Y
1113 VIJAYA COMPLEX
KADUGODI POST FCI ROAD
WHITEFIELD
BANGALORE 560 067
34 SUNIL AGRO FOODS LIMITED
No 1404 AHUJA CHAMBERS
KUMARAKRUPA ROAD
BANGALORE 560001
THE CHIEF ENGINEERS K F B
RANflATflRF 'ONE 'P'R
POST BAG No 5163
BA 4. )RF 60 0
LEKEL 4FKBFR )
?JHITEFIFID R)Ai
MA4AFVAPRAP $
N PoO
F IF
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AAHA FAIF
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BY SRI D S RAMACHANDRA REDDY.
SPECIAL COUNSEL FOR RI
SRI E S INDIRESH AGA FOR R2/S PATE
SRI ASHOK N NAYAK, AD\OCATE FOR R
SRI N S SANJY (1.O\VDA. ADVuCATE D R P4
UDA\A HOLLA, SR COUNSEL FOR Xl S HOLL & Hul LA
ADVOCAPFFORR3, 36& 37
V LAXMINARAAN ADVOC APE I OR RI 1
RAYAPPA & HEODE, AD\-OCATES FORM S i)IJA A'
ADVOCATE FOR R12. 13 & R16
M/S. LEX NEXUS. ADVOCATE FOR R14 & 1j
M/S. A2B & PARTNERS, ADVOCATE FOR R20 & 21.
D RAMDAS. ADVOCATE FOR R19. 22. 24 & 30
T S AMAR KUMAR, ADVOCATE FOR R23, 25 2628. 31 & 32
ARAVIND KAMATH ADVOCATE FOR R29
G KRISHNA MURTHY, ADvOCAIE FOR R34
N KRISHNANARADA GUPTA. ADVOCATE FOR R33
THIS PETITION IS FILED UNDER ARTIC LE S 226 & 22 )F
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
PROCEEDINGS INSTITUTED IN FOG 176/2007 08 UN THE FILE
OF THE FIRST RESPONDENI AND QUASH IHE NOTICE I T
16 4 2008 VIDE ANN A AND ET(
INW P Nose 29765 6JY
BETWEEN
Ai i--Ri i titi tsi 1<1 'L
RB No.+80S VHI'IEFIEL) tAU
\i AHADEVAPURA
BAN(UORF o' 'i
RE B TSEX T
-U F LODH
\GE23LAHS EAI;
SRFF'r,
THE ASST. CONSER\ \TOR OF FORESTS
BANG\LORE SOUTH SUB Di\ ISIU\
BANG ALORE
STAIF OF KARNAJAKA
REPB OS PRINCIPd. 'ECRE'IAb\
FOREST, ECC)LOG & ENVIRONMENT DEPT
UOVF'RNMENT OF KARNATAKA
VIKASA SOUDHA
BANGALORE 360 001
COMMON RESPONDENTS
BY SRI D S RAMA( HANDRA REDD. ADOCIF FOR RI
SRI E S INDIRESH, ALA OCA1 E FOR R2)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITI,. TION OF INDIA PRAYIN( I'O QUASH THE
ORDER BEARING No. FOC 98 06 07 DTD. ° )20O9 PASSEL BY
THE ASST. CONSERVATOR OF FORESTS. KRISHNARAJAPURAM
THE RI HEREIN \'IDE ANNK. AND ETC
THERE 'RI PF TT1IONS ARE )M N )N I H
F-tEARING THIS DA\. THE (0 )L PT MAI)E FilE OLL )WiN'O;
ORDER
The chalienFe in W P No 720(0 220 is o'er the . I UD Forest (Conservation) Act, 1980, and GONo. Cl 444 SRQ 2009, dated i63. 201..2 of the State Government,
2. Petitioners in W,PNos2976566/2009, none other than respondents 36 and 37 in WP7200/2008, have challenged the order No, FOC 98/0607 dated 9,9,2009 of the Assistant Conservator of Forest, Krishnarajapuram. Annexure-K,
3. The undisputed factual matrix is:
il The Gover..nor General in Council of the erstwhile Government of India, Department of Revenue, .Agriculture and Commerce, published in the Mysore Gazette dated 29,6,1878, the Rules dated 8,6,1878 for administration of Forest Lands in the territory of His Highness the Maharaja of Mysore, for short Forest Rules of 1878' and under Section 9 therein, the then Government of Mvsore issued a notification No., 10407 Pt,F. 15395 dated 29,5.1896 published in the Mysore (Jazette on .1 1 b, 1 ob cteciaring arri.ongst others, at. -9- Sl.No.28, the plantation by name Kadugodi, Bangalore Taluk, measuring 711 acres, demarcated by boundaries be classed as "Government Plantation" under Rule 1 of the Forest Rules, 1878.
4. The Highness, Maharani Regent enacted The Mysore Forest Regulation, 1900, by repealing 'Forest Rules of 1878', published in the Mysore Gazette on 6.12.1900, to amend the law relating to the forest and forest produce in Mysore.
5. The erstwhile Government of Mysore by notification No.422/FtF. 15-1900 dated 7.1.1901 under Section 23 of the Mysore Forest Regulation, 1900 declared, amongst others, the plantation at Kadugodi in Bangalore District, notified as State Forest under the Forest Rules of 1878, to be State Forest under the Mysore Forest Regulation, 1900. The survey record of the year 1865 states that 677 acres 3 guntas of land in Sy.No. 1 of Kadugodi Plantation is classified as "kharab"
Ext and referred to as tree plar tation, so also in the year 1921. the land is classified as kharah' & The Militar\ Department under the erstxhile Go\'ernment of India during the year 1942 43 occupied an area of 170 acres 13 gnntas while in the year iQ49 50 were in possession of b55 acres 32 guntas of Kadugodi Plantation, pursuant to xhich, an Official Memorandum dated 10 11 1944 was issued by the Revenue Comrnisstoner and Civil Representative in Mysore. accepting the recommendation of the Chief Conser tor of Fo est Ms re. to pay cornpcrs'uion i respec tt c ropert es U sib r ed ri i a purpose n Mt so under u defer s uf In a Rules whhh Included kadugodi plantation. Ac' ordng o the F or St F partrn r gi' a c nt a p rt ) ic v r 9 13 4 r Ian 'grass a a F ust D uuai uaci r (duct Consertator of Forest, in iddition to damage caused to growth in Kadugodi Plantation from rime to rime and re ision of ground rent for 355 icres 32 guntas ut (f 11 acres by letter dated 2310 1944.
7. The Chief Conservator of Forest in Mvsore bx letter No M2J15(b) 562/47 Ut. 30 3,1950 (as extracted in Annexure S to the rejoinder to the statement of objections filed by Respondents 1 and 2) addressed to the Secretary, Government LSG Department with reference t etter No AF 9330 dated 22 1930 aving conducted a spot lnspert o 1 n on 12,2 1950 along with the District Presr Dffieer. Bangaiorc and noticing that s p s a su cundrna th plantattn ihc arise ar1 the fe r r.f rr riauiiv pae 1-
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8. The Secretary, Government LSG Department, Bangalore, (Local Self Government) by letter bearing No. AF 2715 dated 19.6.1950 addressed to the Revenue Commissioner in Mysore directed action be taken for derequisitioning of the lands in Kadugodi Plantation from the military and place it for disposal at the hands of the Rural Development Commissioner in Mysore for cooperative farming.
9. The Revenue Commissioner in Mysore by letter No.C1-1569/49-50 dated 4.7.1950 addressed to the Chief Conservator of Forests in Mysore and a copy to the Deputy Commissioner, Bangalore District, making reference to the order dated 15.6.1950 in the matter of issue of discharge certificate as agreed by the Conservator of Forest in his letter No.M/82-530/49 dated 13.2.1950, communicated the fact of derequisitioning 572 acres 6 guntas of Kadugodi h Plantation and requested it to be handed over to the Deputy Commissioner, Bangalore District.
l0 The Deputy Commissioner, Bangalore Distiict, by letter•• No,M2 PR 149/ 173 1/49th0 dated 157.1950 called upon the Amildar, Hoskote Taluk, to submit a report after taking possession of the land from the Forest Department and also to submit, if there was any plantation area under the Military Department.
Ii. Consequent upon the release of the land to the Revenue Department, its possession was handed over to the Kadugodi Samuhika Vyavasaya Sahakara Sangha con.sisting of the members belonging to the Scheduled Castes arid Scheduled Tribes for cultivation. pursuant to which, the said members were put in possession of certain extents of lands for cultivation. The said Sangha when constituted into a Cooperative Society registered under the K arnata.ka •Coopcrativc Societies Act, 1957, was known as Kadugodi Joint 14 Fanning Co-operative Society Hoskote Taluk That Society having become defunct. the Deputy Registrar of Cooperative Societies Bangilorc Rur ii District. 1w order dated 31 12 1q83 appointed the Cooperative Extensior Officer, Hoskote Taluk. as liquidator. to wind up and submit a report for cancellation of the Society and complete the liquidation process
12. The Divisional Forest Officer hi letter dated 12 13-8-196° addressed to the Executive Member of the erstwhile Msorc Industrial Development Board Anrexure RI tc' tie ta m nt of objectnn datel 15 72011 of KI4DB stated that from out of 42 acres 6 ,ur as il <a Ii Elaita or U) 5i arcs b gu ta are 'tcd ee a I pn ar v e ON' k 271f' "1; 1'- 6 jCa% In A. acrc' t' s '• hc x unat r,r of 0 Vi('an A. h ill s r .r tie i i r t i e 01 cF c Dep;r.'iw
13. The State of Karnataka enacted the Karnataka Forest Act. 1963, which came into force wef. 272J964 by repealing die Mvsore Forest Re&ruiation. 1900,
14. The Divisional Forest Officer by letter NoR2 17DAR42/6970 dated 12/13081969 confirmed that an extent of 572 acres 6 guntas of Kadugodi plantation was released to the Revenue Department by Government Order dated i96J950. I LAND MEASURING 148 ACRES 20 GuN'rAs IN SYNo1 OF KADUGODI PLANTATION FROM Our OF WHICH:
i) Plot No6 measuring 78 acres 20 guntas was allotted to the petitioner in WP7200/2008;
ii) Plot No5 measuring 10 acres was allotted to the petitioners in WP2976566/2009 (R36 and R37 in WP72O0/20O8);
iii) 11 hectares 3q95 Sqmtrs was allotted to Respondent No.5 in W.P.7200/ 2008.
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Depot ME (Militant Fngrneering) in possession of the Commandant, My sore Special Reser e Police Bangalore. was on 19/5 1972 handed over to the Mysore lndustnal Area Development Board, on payment of Rs.564/ per annum as compensation In addition, it states that certain dry private land in Sy No 140 New Sy No 35 and 37 of Potandur village is also handed over pursuant to GO No HD 60 SST 70 dated 24 3 1970 18 By order dated ,/6 7 1972 Annexure B to W P 200 08 the rstwhile Go ernment of Mysore a corded sanction to release 29 acres of plantation n S l\ f Kd ig d Pin t t o sko e ik nd iede e e e e rn I C -18- Forest Act 1963, by Act No.23/74, w.e.f. 16.9.1974 inserting the proviso that no such notification shall be issued unless a resolution to that effect has been passed by both the Houses of the State Legislature.
20. By Act No.15/1978 Section 28 of the Karnataka Forest Act, 1963 was amended by inserting a further proviso that no such resolution shall be necessary when the proposal relates to regularisation of uhauthorised occupation of any reserved forest or portion thereto, if such occupation was prior to the date of commencement of Karnataka Forest (Amendment) Act, 1978, w.e.f. 27-4-1978.
21. Re(Q: The Mysore Industrial Area Development Board issued a possession certificate dated 17.5. 1973 (Annexure-H to the W.P.NO.7200/2008) handing over plot No.6 measuring 78 acres 2583 sq. yards in Kadugodi Industrial Area, Bidaranahafli, Hoskote Taluk, along with trees,
- 19- buildings and structures standing thereon excluding the barracks coming on the western boundary, to MIs. STEYR India Limited while the endorsement over leaf discloses the acceptance of the change in the name of the company to M/s Concord India Private Limited, the writ petitioner.
22. The agreement dated 21.2.1979 executed by KJADB in favour of M/s. STEYR India Limited extended a lease of plot No.6 for a period of 11 years with a condition to sell the premises to the lessee after the expiry of the said term.
23. The KIADB executed a lease-cum-sale agreement dated 21.2. 1979 in favour of the petitioner in respect of Plot No.6 being land, buildings and structures as detailed in Annexure-A thereto effective from 17.5.1973, Annexure-G. 20- 24 KIADT3 instituted 0 S. 159/90 arraigning as defendant the petitinner in W.P No.7200 '2008, for permanent injunction which when decreed on 23.9.1996. was earned in R.A 190,96 and thereafter, RSA No 501/97 whence the judgment and decree of the trial Court was set-aside follo'sing which, the KIADB filed SLP No J 7126,98 which as dismissed b) order dated 3.12.1999 of the Apex Court.
25. The KIADB instituted 0.8.421/2000 before the I Additional Civil Judge. Bangalore Rural District for possession, damages etc. arragnir'g as defendant the petitioner 'ii W.P No 7 00 2008 akh as dismissed b otter .attc 2ñ" 20G, as settled out . f Cii
26. The MADB exec .jfrr 1 IAfl$flJ' 'p in tc ptt'tluqtr ps'.n Rs V.2' ,al.,,23. 'R'i;rs 1h-i-c r'irv e e Ii I' a 'I hundred and twent) five only) ao sale consideration fixed tentativeh. iii respect of plot No 6 in Kadugodi Indubtrial Arca caned out of Si No 1 Block No 7.3 of Kadugodi Plantation measuring 7M acres 2219 sq mtrs.. more fully described therein and delineated in the plan annexed thereto, prescribing a green coverage of 2 cc of 5 the land.
27. Re(il): The Mvsore Industrial Area Deielopment Board allotted plot No) in Sy No.1 of Kadugodi Industrial area. measuring 10 acres, and put M $ 4lftcd Herbu t (I) td petitioncr it WI 976 ,- 66/09 in possess'o 1 on 21'.7 172. and ececuted a 4 asc iirak et lat 1812, ncure. . e p'ot ws 3' uribed as ;ndurling uw barracks rr tied f. C ii ks it i e tic ai n st hJ1Idir nfl' R(.( or i'c hi .B "xc' jt.af -i sal"
c d te 8. Ai e gt sc 0 0 ic y 1 I 0 CD e CD 0) 0 CD CD CD CD C 0 cr sD 1 CD CD 0 0 CD cx I co c' Y 0 - I CD j I CD I 0 CD r+ CD 0 CD CD I 0) CD 0) CD 0) CD CD 0 CD 0 0 0 j - CD CD 4 ) 0 CD CD 0 0 r CD CD t I 0 CD C) CD CD CD C 0 'p Ii I CD (30 C) CD I -+ CD CD CD CD I CD 0 CD (3Q 0 I 0 ) CD rt 0 CD - I j oo 0) 1) 2. CD -- 0 0 (3D 00 1 = 0 C 2 \ r* 0 ' 1 CD I CD CD CD !Q I Forest Land. Pursuant thereto, the 1" respondent
recorded the statement Annexnre '3' of the petitioners authoj.ised person, and b order dated 992009, AnnexureK, held that 9 acres 23 guntas out of 10 acres allotted to the petitioner in SvNo. 1 of Kadugodi Plantation was a reserved forest, and directed the petitioner to handover possession of the said property within thirty days therefrom,
30. Re(iii): Facts asserted by respondent No5 San Engineering & Locomotive Co. Ltd. in WP7200/2008:
The Mysore Industrial Area Development Board allotted plot No,4 in S,No. I of Kadugodi Industrial area measuring 11 hectares 3995 Sqmtrs on 77i. 972 in ihvour of M/s Sun & Nayar Limited name was changed to that of the a responderi t.. followed b a transfer of allotment by letter dated 159. 1990 incorporating the charg,e in 24 name, and the execution of an absolute sale deed dated 18.1.1988 by MAD B, conveying the property allotted. According to the 5th respondent, the factory is in existence eversince 1974 and that in the year 2006. the Ministry of Commerce and industry approved the proposal to set up a special economic zone IT/ITES over the schedule property, for which, the Government of India too granted approval. 5th respondent when served with a notice dated 7.1 2008 of the Chief Conservator of Forest under the Karnataka Forest Act, 1963, was responded to by a reply dated 28.12008 indicating that. the land was not forest land, following which no further action was taken by the- Authorities. The 5 respondent supports the ease of the petitioner.
II 300 37 GUNTAS OUT OF 72 ACRES GUNTAS:
-25 -
31. As noticed supra, by order No.AF.2716/ 19 dt. 19/6/1950, an extent of 572 acres 6 guntas of land in Sy.No.1, Kadugodi Plantation was released by the Government in favour of the Revenue Department which, in turn, was handed over to the Kadugodi Samuhika Vyavasaya Sahakara Sangha and accordingly entries made in the revenue records.
32. The State of Karnataka exercising jurisdiction under subsection (1) of Section 3 of KIADB Act issued notifications of even date 25/2/1981 (Annexure-R6 & R7 to the statement of objections of KIABD) declaring as an "Industrial Area" 300 acres in Sy.No. 1 of Kadugodi Plantation.
33. The Government of Karnataka by notifications dt. 9/4/1985, 13/8/1985 and 18/4/1997 published in the Karnataka Gazette acquired 91 acres 33 guntas; 209 acres 4 guntas and; 4 acres 26 guntas respectively, exercising jurisdiction conferred under subsection 4 of 26 Section 28 of KIAD Act (AnnexuresR8, R9 and R10 to the statement of objections of KIADB).
34. Consequent to the acquisition and formation of the layout, the KIADB allotted industrial piots to eligible applicants on various dates as disclosed in AnnexureRl2 to the statement of objections.
35. The Forest Department and the KIABD having jointly conducted a survey of the lands, in SvNo. I of Kadugodi plantation resulted in the drawing of a map Annexure-R3 whereundcr 79 acres 21 guntas was shown to be in possession of Forest Department, while 430 acres 40 guntas in the possession of KIADE, and
201. 186 acres as encroachments.
36. The allottees, according to the abstract AnnexureR 1.2., are. Southern Railwavsresoonden.t No 4 to an exten.t of 2.29 a.cres 22 guntas; petitioner in WR7 200/2008 78 acres 22 guntas; Respor.dent No5 1 -27- San Engineering and Locomotive company Limited, the 5th respondent in W.P.7200/2008 to an extent of 28 acres 17 guntas; petitioners in W.P.29765-66/2009 also respondent Nós. 36 and 37 in W.P.7200/2008 to an extent of 10 acres, while other plots of land to 28 beneficiaries, arraigned as respondents in W.P.7200/2008.
STATEMENT OF FACTS OF RESPoNDENT No.3 - KIADB
37. By memo dt. 16/6/2011, respondent No.3 stated that it had filed a detailed affidavit refuting the averments set out in the affidavit of the Secretary to Government (Forests), Forest, Ecology and Environment Department, Bangalore, which holds good and no new contentions are raised and seeks leave of the coun to accept the said memo.
38. In the affidavit dt. 19/1/2011 of the Chief Executive Officer and Executive Member of the KIADB, it is stated that 454.3 acres of land in Sy.No. 1 of Kadugodi Plantation was acquired and possession taken by the Commerce & Industries Department, Government of Karnataka, while the Mysore State Reserve Police transferred a portion of land to the Board which formed the industrial layout in 430.1 acres of land and allotted plots and handed over possession to various entrepreneurs. It is further stated that in the joint meeting held on 12/7/2010, the Forest Department and Commerce & Industries Department, a suggestion was made to apply for de-forestation under the Forest (Conservation) Act, 1980, to the Central Government in respect of 100.34 acres of land allotted to several industries by the Board and allow the rest of the land to be taken over by the Forest Department, if it is proved to be a forest land. It is further stated that the KIADB did not agree to surrender the land, not in their possession. In paragraph 4, it is stated that the Deputy Conservator of Forest filed the affidavit dt. 23/10/20 10, even though in the meeting it was decided to file a joint K :9 affidavit by the Commerce & industries Department and Forest Department t ptragraph 5 it is stated that ri W A No,2650 8/ 0 the Board has contended that land n SNoi of Kadugodi plantation has lost the characteristics of forest land as the said land was transferred from Forest department to the Reve nue department in the year 1950 much before the commencement of the Forest (Conseration) ct 1980, and having allotted and conveed the lands by executing sale deeds m favour of industrialists. STATEMENT OF FACTS OF REsPoNDENT No.4:
39. It is asserted that KIADB issueri a nutificaton dt 5/5;lq8I under Seton 28(1) to acQuire 251 c es 35 guntas carved ou ot S' \e I t K.augodi Planat on Or fo matior ol I d t ia c olk at i dc I r it 0 1 8 C 2 i rio ° 2 f I ' c 1:
c a Go e rim r : sf. rd he 'aria 1GAJB horn 0 lCC 0 011 tc3 tO nc ai ' & 30 which established a Satellite Goods Terminal on posses•• slon being handed over. According to Respondent No5, th.. e establishment of the Satellite Goods Terminal by the Railways was approved by the Union Government.
40. The Forest department having initiated criminal proceedings against the South Western Railways under the Forest Act alleging contravention of provisions of the said Act, when called in question in W.RNo. 14649/2007, the State though entered appearance and contested the petition by placing reliance upon the notification of the year 1896, nevertheless, a learned Sing...le Judge allowed the petition by order dated 1Q./6/2009 observing that the rcspondcntli.'orcst Department had no ju.risdiction ovcr the land lcgitirn..atcly acquired and handed over to the Ratiwa ucpartmcnt 1.0 iflC year i34 ana tnat toe iano V;35 irot a reserve I.hrcst. The State ot Rant at and k...31
the Range Forest Officer having earned the order in W A 3805/2009, the Division Bench b} order dt. 7 1/2010 Annexure R2 dismissed the appeal onfirming the order of the learned Single Judge 41 Review Petition No 272/2010 filed by the State when dismissed by the Division Bench, the State is said to hae preferred an SLP before the Apex C ourt, which is said to be pending L! 2! s 1 4 ê I:
42 In their statement of objections dt 2 2/2011
it is asserted that being the absolute owners i
p'ssessior plt and 4 in Kadugoa
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43 In the statement of objeCriOflS dL 2/2/20113
it is stated that respondentS 20 & 21 are incorre ctly described as Holex (India) 't. Ltd, though ought to be read as Molex (Indial Pvt Ltd. In additiO t is stated that when allotted plot No.6(a) and 6(B) in adugOdi industrial area by letter dt. 19/11/1 990 of KIADB, possession was delivered on 17/1 g9 The 1 1/ 0 respondeflt it is sald, issued a show cause notice followed by a personal hearing whenc a resp e onse dt 4/12/2007 was filed, whereaf ted5 a second show cause notice as issued 8 I leng unauth0r15 occupation of forest 1a which too when respo nded by a reply d 29/1 200& no fu'ther action iS taken. Th respondents support the case of the petition er fP.PY N9 44 The s 1 tatrn(fl of obeCtWfl5 disciosOS that p101 o 3fB) ailuted by KlDB n the indstriI iea on 28/11 / 1995 and 4/3'2002. whence possession was delivered and on receipt of a notice urder Section 64A of the Karnataka Forest Act, 1963. issued by i respondent alleging violation of certain rovisions of the said Act, led to an order dt. 25/10/2007 over which respondents reserve liberty to question the same in an appropriate legal proceeding.
STATEMENT OF FACTS OF REsPoNDENT No.11:
45. The statement discloses that 40,051 sq.mtrs.
of land bearing plot No2 in Kadugodi industrial area when ailotted on 4/9/1990 by the KIADB and possession delivered under possession certif.icate AnnexureR3. established an industry for manufac.ture of speciahiz.ed equipment for defence of lnd.ia, It is asserted that the plot in question doe.s n.ot form a ortion of the reserve forest.
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before court as directed, nevertheless the order sheet does not disclose the filing of such files into court 49 Ir the statement of objections dt 26/ 3/2010, it. is ssserted that Sy Nc of Kdugodi Plantation measuring 711 acres is a reserve forest since under the notification dt 29/5/1896 AnnexureR1, it was declared goernment plantation and thereafter by another notification dt 7 1 1901 Annexure R2 was declared a State Forest on the coming into force of Karnataka Forest Act, 1963, under Section 23 thereof. the lands stood statutorily declared as Reserve Forest According to the respondents. cor sequent upon the ci acut ci c r se 'a 1OH) c i a R srv f re a n o s f i rc I actiitis and in t e 5 i:gt of tee J cLgen* o tc Apex (our z n T N GODAVARMAN THrnuMuUCPAD vs. UNioN OF IDIA oO OU sceu p r!cT sit'p, l'nn it, preserve the forest. In paragraph 3, it is stated that the notification Annexure R2 and Sec23 of the lKarnataka Forest Act. 1963, were not brought to the notice of the learned Single Judge in the writ petition filed by the South Western Railways and therefore the judgment rendered in the absence of Annexure R2 is not a binding precedent.
50. By memo dt. 6/1/2012, typed copies of communication and orders as set out in the particulars mentioned in the memo are enclosed. PLEADING OF THE 2ND_REsPONDENT:
51 Second respondenh State of Karnataka filed a memo dt. 9/7/2010 enclosing photostat copies of th...e correspondence and notifications, as well as the list of ailottees and the memorandum of writ appeal in WK265758/20 10, referred to supra. 37
52 Enclosed to the memo dt 2/12/2011 filed on 6/1/2012, the 1 respondent produced typed copies of certain statements showing that the land in S No 1. Kadugodi plantation was occupied by the military authorities under the Erstwhile Government of India during the period from June 1942 onwards and the claim for compensation as well as rents for the lands in the year 1979 by the Deputy conservator of Forest The State government by memo dt 4/8/2010, enclosed a xerox copy of the letter No G 1 1558/49/50 dt 4/7/1950 of the Revenue C ommissioner Mysore making reference o he letter bearing No AF 271 dt 1 9/C '9 ,0 and 'titn g tlia wigir al o" na irtier S t aaa od e )ep Commrssio I id d I 38 the alienees having purchased the land, in good faith, may make applications to the Forest Department for the clearance of the Government of India to use the forest land for .non forest purpose under the Forest (Conservation) Act, 1980.
54. The affidavit dt. 21/7/2011 of the Commissioner for Survey Settlement states that the extract of the Prathi Book AnnexureR2 in respect of SyNo. 1 AnnexureR2. records an extent of 677 acres 3 guntas in SyNo. I of Kadugodi classified as "Kharab", The resurvev map of 1921 AnnexureR3 as well as the map of the year 1873 AnnexRI, indicate the presence of plantation ie, different types of trees in t••he said SvNo. The akarbandh of the year 1938 AnnexureR4 and that as on 1966 Annexu.reR5, confirm the exteni.. of land an extent as 677 acres 3 guntas and classified K±iarab 55 The affidavit of the Secretary Revenue Department makes reference to the Government Noufieatiis dt, ,5j° 1896, 7' "1 90i and that sur\ev No 1 f Kadugodi measuring 677 acr s 3 guntas is classified as "Kharab'1 The contents of the affidavit are a reiteration of the contents in the affidavit of the Commissioner for Survey Settlement. In addition it is stated that 572 acres and 6 guntas of land was released to the revenue department by government letter No AF 2715 dt. 19/6/1950, whence its possession wa.s handed over to the Kadugodi Samuhika Vvavasaa Sahakara Sax gha f r or t farrr ng b r or hedule Castes r d Scheduled Tribes landless labourers and the revenue rc rds d n ucd ii iar of t sa I So c and ccep d by re R cnue utho ItiCS r ax ition, sa'e"i that th ('er11met,t dr No A!- 7l ,t 0 a 40
56. The affidavit dt 26/5/2011 of one MNagaraja Hampole, the Secretary to Government (Forests), Forest, Ecoio and Environment Department states that M/s. KIADB agreed to surrender the unutilized portion of Sy.No. 1 of Kadugodi plantation, to the Forest Department, and recommend the utilized portion for approval under the Forest (Conservation) Act, 1980, to the Government of India, to which the Forest Department had no objection and would join in the recommendation for permission.
57. The State, by memo dt, 20/3/2012, enclosed a copy of its order dt, 16/3/2012 challenged in WR7200/08, directing the Forest department to ta..e possession of the unutiized "industrial area" in SyNoti of Kadugodi plantation, in exercise of powers under th.e Karnataka Forest Act., 1963. and the Forest (Conservation) Act. 1980.
4I
58. Having heard the learned Counsel, perused the materials on record and keeping in mind the admitted facts, the following points arise for consideration:
1. Whether SyNo. 1 Kadugodi "classed" as Government plantation is a deemed reserve forest under the Karnataka Forest Act, 1963?
2. Whether the notifications dt. 4/1 08i 970 and 5/1 0 81970 of the State government issued under Sec3(1) of the Mysore Industrial Area Development Act, 1966, declaring 1 19 acres + 29 acres and 20 guntas in SyNo. 1 Kadugodi Government plantation as "industrial area" could be construed as having the effect of dereserving a. reserve forest fOr nonforest activity in the absence of a notification under Sec28 of the Karnataka Forest Act, 1963?
3. Whether the communication bearing No. AF 2715 cit.
19/6/1950 of the State Government tantamounts to dereserving a State forest under Regulation 30 of the Mysore Forest Regulations, 1900?
4. Whether the notice cit. 16/4/2008 WP. 7200/08 is legal and valid?
5. Whether the Government on/er No,. CI 444 SRQ 2009 Ct Zthe OCCI or Sta qeen s n:' ac valid?
6. Whether the Order No. FOC 98/0CC 7 dt. 9/9/2009 tt CI REG PoINT No.1:
59. Sn DL NRao. learned Sr Counsel for the petitioner in W P7200/08. submits that Kadugodi plantatton measuring 7 Ii acres in S ,No. 1 iS the property of the State and does not fall within the meamng of "State Forests" under Rule 1 of the Forest Rules of 1878, but vould have, if notified by the Chief Commissioner under Rule 9 to be a State Forest, which having not done so the notification dt 29/5/1896 issued by the erstwhile Goernment of Mysore demarcating the settled plantation classed as government plantatton. does not support the case if the respondent Fo cst d a ment This missi ii a lv s d b D ma dra I d edrrLCd Speca 1 Counsel für RI that an icniarated nlartaTior pr'rrv' ,'t he Sntr. urren n ufied b hid C nsso u I uh rs (_) C ) I CD C CD CD :3-
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harge of districts as well as sub ordinate offic.ers with the administration of torests in the manner provided therem s abj' ct t, gener ii control of the Chief Commissioner A reading ci Rule 1 m conjunction i'ith Rule 9 makes it abundantly clear that "State forests' means any demarcated forest or plantation belonging to the State which is notified by the Chief Comrnnsioner under Rule 9 to be State forest In other words, there must be in existence a demarcated forest or plantation, the property of the State. which the Chief Commissioner shall notils under tile 9 t be a State forest The language Qeplo ed 'hile ngrafting Rule I mandates the Chief Commissioner to r c til, he demar ated p1 ntat on or forestS flue proper of hc State 'c' be tnt- State lures vhile Rul 9 r and tes he sue ot prc larr'tio of d mx cation ai d n 4 boutsc es u. f e; rv Stat' for. t in he b1 ix F ii Tal It 4 e Ic ore is u d in. a t1'.tat1nt put iistied 'n Mvso: gatzette •1 ct*is ilk t - .or n ed Chief Commissioner under Rule 9 to be a State Forest". therefore assumes importance.
63. A question necessarily arises as. to whether a proclamation of demarcation of boundaries of every State forest publicly made in the Taluk where the forest is situated and a notification duly published in the Mysore gazette in compliance with Rule 9 is sufficient to mean that what is notified is a State forest under Rule 1? Sequentially the next question is, whether the expression "to be a State forest" in Rule 1 is superfluous, redundam and of no consequence as asserted by Sri, D. S. Rarnachandra Reddy, learned Special Counsel for RI?
64. The meaning of "State forests" in Rule I if read by excluding the expression "to be a State forest", takes into its fold any demarcated forest or nlar'tation property of the State as notified by the Chief Commission r under Rule 9 by a procl.arnation of the 48 demarcation and boundaries of that State forest publicly made in the Taluk where the forest is situated and published in the Mysore gazette.
65. Since the aims and objects of the Forest Rules of 1878 are not forthcoming, the preamble to the notification and the provisions thereunder point to a fact that its promulgation was due to a need to include plantation and forest, properties of the State, within the expression "State forests" which hitherto was not done, since maintained separately. Though making a list of forest and government plantation would bring them within the meaning of the expression "State forests"
under Rule 1, nevertheless, the then Government of India, th ought fit to engraft Rule I and Rule 9, which when read together. apparently makes clear, a mandate to the Chief Commissioner to notify under Pule 9 an.y demarcated plantation or forest to be a. State forest. Rule 9 too contemp.Iates the issue of a proclamation of Li -49- demarcation of every "State forest" to be publicly made in the Taluk where it is situated, by a notification duly published in the Mysore gazette. In other words, the proclamation must be with reference to a State forest which is required to be declared as such publicly by notification duly published. Thus compliance of Rule 1 and Rule 9 is complete only when the proclemation of the demarcation and boundaries of every State forest is made to the knowledge of the public, meaning thereby seeking to notify the public that what was demarcated and notified by the Chief Commissioner was "State forest".
66. Viewed thus, the expression "to be a State forest" in Rule 1 requires the Chief Commissioner to notify any demarcated forest or plantation, the property of the State, in compliance with Rule 9 to be a "State forest". The proclamation under Rule 9 must therefore indicate that the demarcated forest or plantation "to be Uk a State forest", leading to the only conclusion that Rule 1 cannot be read in isolation of the expression "to be a State forest". The answers to the two questions supra are in the negative.
67. Adverting to the notification dt. 29/5/1896, it is the State government declared, amongst others that the demcated and settled plantations in SNo, 1 Kadugodi measuring 711 acres, "shall be classed as government plantation under Rule 1". in other words did not mean that the settled plantation is "to be a State forest" the expression used in Rule 1 and the expression "every State forest" used in Rule 9.
68. That notification aplDarentiv was not issued by the Chief Commissioner, a n. an.date contained Lu Rule it is aJso not shown by record that there was due Pu licity in Bane alore Taluk within whose territorial jurisdiction Kadugodi plantation was situated.
Sri DSRamachandra Reddv. learned Secial Counsel for the State Forest Department submits that the notification being more than one hundred years ago and a presumution arises oer clue compliance of procedure, is unacceptable in view of the entries in the Siirvex and Revenue rpcnrds marntained by the then Government of Mvsore The Survey records maintained by the State of the year 1921 AnnexR5, the akarbandh of the year 1938 and 1966 AnnexR6 and R7 respectiveh as well as the reclassification Prathibook AnnexR4 to the affidavit of the Commissioner of survey settlement records that the land measuring 677 acres and 3 guntas in Sv. No. I Kadugodi is cIa.ssfied as 'ki a ab", o eh U- iaus r ike ref r r e to e pl t ion po U nd refc e notificitnri cit 2 / 5; ac 10 being ne ompinnt, lainl m-a'unne I kaoui B ore , d ot I hir xp 'it U
- 52 -
69. The "Forest Rules of 1878", stood repealed on the coming into force of the Mysore Forest Regulation, 1900, whereunder Regulation 2(11) "State forest"
meant, any land settled and notified as such in accordance with the provisions of Chapter II. Regulation 23 falling under Chapter II states that the Government may by a notification in the official gazette declare that any forest which has been notified as a "State forest" previous to the date on which the regulation comes into force, shall be a State forest.
70. Learned Special Counsel for the 1st respondent submits that though the notification dt. 7/1/1901 is in accordance with Sec.23 of the Mysore Forest Regulations, 1900, nevertheless since the government may constitute a "State forest" under Regulation 3, the notification ought to be read as constituting Kadugodi plantation in Sy.No. 1 as a "State forest". Learned Counsel places reliance upon the decision of the Anex Court in UNION OF INDIA & ANOTHER VS TULSIRAM PATEL & OTHERS 2 It s no doubt true that Rule under Chapter II of the Mysore Forest Regulations '900, invests a poxer in the State to constitute as a "State forest" any land at its disposal however in a manner provided in Chapter II. Regulation 4 provides for the publication of a notification in the official gazette whenever it is proposed by the State government to ronstitute any land as a State forest by specifing as nearly as possible the situation and limits of such land, declaring th i t p p s o n Ut t a c ar d a State forest", and appomtlng an offcer called ihe to U cit en C) r or o qu 0 r1Ct ni1rg th 'xstn . era: anl xU ii ii ugnt C'iãi l u ) aieg iO \lSl i ti of. nv rs c r l pr d
-54 within such limits, or to am forest produce of such lands and to deal with the same as provided in the C. hapter Regulation rovides for proclamation by the Forest Settlement Officer to be published in the official gazette and at the headquarters of each taluka in which any portion of the land comprised in the notification referred to in Regulation 4 Regulation 6 provides for bar of accrual of forest fights while Regulation 7 contemplates an inquiry by the Forest Settlement Officer and Regulation 8 invests power in the Forest Settlement Officer Regulation 9 provides o cxt ictior pt ts 'cLt c R gulat' d ak w zovert ut d ssF g is clai ed Reg itic'r 11 quires th T'cresi flifire, to pas'. an -,rder c,se s. laims k t IighLc ol ia t.r pasture •.r ; f s 1 t produtw .i .
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of rights: and Regulation 15 to appeals from orders passed under Regulations 10 11 12 13 or 14 md Regulation 16 proudes for vi appeal Regulation 17 states that if the following events have occurred:- (a) the period fixed under Sec.5 for preferring claims as lapsed; Ib) if such claims have been made the period fixed by Sec 15 for appealing from the orders passed on such claim as lapsed; (c) all proceedings prescribed by Regulation 10 and 13 have been taken place and all lands or buildings included in the proposed 'State forest" winch the Forest Settlement Officer las Icr lectel pire ile the Mys z Lan q sitior Regulation 3) 1- we bec. ic vested i the govern c.nt under S 16 of tha' Ragulaton. be gotcrnment may publish riot zcaton .tr It iai gClzeLt' spi ufvig tttf of h it wh is n cd tr, s r be a 'State forest' from a date fixed bi such notification subject to exercise of nghts if an specified at the foot of the said notitic ation 2nd from the dates so fixed such forest shall be deemed to be a 'State forest' Apparently the notification dt 1 1/1901 issued under Sec 23 of the Mvsore Forest Regulations 1900 does not compic with any of the Regulations under Chapter II so as to deem the land m Sir No.1 of Kadugodi plantation to be a State forest lhmsubm sor ftic cdS ci IC u se (Ct C. I F 1 forest Sequentially the submission that the said State forest is a deemed reserve forest under Sec 23 of the Karpataka F rest Act 1963 is unacceptable In the light of hat is stated supra the further submission of the learned Special Counsel that lands allotted to the petitioners when described as forest land" in the schedule to the lease deeds executed by the KIADB the petitioners cannot c ontend to the contrary pales into insignificance Point No 1 is answered accordingly REG, ALTERNATIvE PLEA:
r D N Rao rr ed (our Sc 0 Uc
petition W 200 08 bir ts ha tF c Varr ataka
cg -
Act. 1963. it is submitted, being a general enactment to protect forest mvests in the State government, under Sec 28 the ,e to 1 rc f rests io 1 ngtr reserve Iec a forest by a notification from whence on the forest shall cease to be a reserve fnrest. According to the learned Sr. Counsel, it is the State government that exercises power under both the enactments and therefore the notification dt 4/10 8 l70 under Sec. 3(1) dec'aring as an industrial area 148 acres and 20 guntas m Sy.No 1 Kadugodi plantation has the legal implication of declaring the State forest as no longer a reserve forest and therefore no turther notification under See.28 of the Varnatal'a Fores 196 ecessa 'clianet lac. ntef ng p 10 (lj k'nI Co 4 1 ICNER 31 MMERLIn 1 (ASSI .F Di-t,u444h OltiEk'- DNiflIEr'A rkALW-
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(3) POURNAMI OIL MILLS VS STiFF )F KERALA &
5
ANOTHER
(4) C'HA'IDRA SINC H & OTHER VS SIAIF. )I' RAJ4SIHAN
& ANOTHFR
73 qr Uday Hofla learned Sr Counsel for
petitioners in W p 29765 66/09 while adopting the
aforesaid submissions, in addition submits that the
State Government during the year 1970 took a pohc5 decision and formulated a i elfare scheme with the assistance of experts in identifying Sy No 1 Kadugodi plantation as suitable for being developed into an 'industrial area and it s futile to questior the wisdom of tht state gover u er is jun ture by he forest dcparc'ac. a ia. an a u v v c. v is S S C Sec3(l) of the KIAD Act, cannot be permitted to approbate and reprobate.
74. Learned AddI. Advocate General for the State maintains that in the absence of a notification under Sec.28 of the Karnataka Forest Act, 1963, the land in question continues to be a reserve forest and that the notification under Sec.3(1) of the KIAD Act, 1966, is not a substitute to the mandate under the Karnataka Forest Act, 1963. It is submitted that though the State exercised eminent domain power under Sec.-3(1) of the K1AD Act, 1966, pursuant to the object sought to be achieved under that Act, nevertheless the considerations, for a notification under Sec.28 of the Karnataka Forest Act, 1963, being different, the land continuous to' be a reserve forest.
75. Learned Special counsel for RL Forest Range Officer, while adopting the .sub'mission of learned .AAG, in addition submits that the Karnataka Forest ,Act, I 61 1963. and the MAD Act, 1966, operates in different spheres, although the State Government is invested with the power under thc two enactments, one to declare under Sec23 that a forest is no more required for forest purpose and the other to declare an industrial area. According to the learned Counsel, notifications issued under one enactment, cannot have a bearing upon the notification to be issued in the other.
76. Learned counsel further submits that the object of the Karnataka Forest Act, 1963 is to preserve and not to dc-reserve forest while the object of the KIAD Act is to promote industries and therefore, the notification issued under one cannot have the effect of issue of a notification under the other, i..earned counsel hastens to add that where a ower is granted to do a cenain thing in a uet Lain war, the tiniw must be- done in that way or not at all and that other methods of Ill:
62
performance are necessarily forbidden, by placing reliance upon the following reported opinions:
a) RMAcHANDRA KE5HAv ADEE (DEAD) BY LRs GOVIND JOTI CHAVARE & OTHERS 7
h) THE BOARD OF Mu SLIM WAKS, RAJASTHAN RADHA KISHAN AND OTHERS 8
c) S.M0HAN LAL 9 RK0NDAIA H di M/S SHAH AND Co. BOMBAY STATE OF MAHARASHTRA & ANOTHER 10 Learned counsel further submits that Forest (Conservation) Act, 1980 was enacted with a view to check deforestization by placing reliance upon the following reported opinions:
a) tNGODAvARMAN THIRMuLKPAD -43 UNION OF INDIA & OTHERS"
b) T. NGODAvARMAN THIRMuLErAD --v UNION OF INDD.. &, 12 OTHERS ci iCMCFiNNuPFA --43 L31ON OF INDIA 13 di NATuRE. LOVERS MOVEMENT 43 STATE (3 F KEFJLA' 4 7 A IR 1975 SC 915 at paragraph 25 AIR 1979 SC 289 at paragraph 20 8 AIR 1979 SC 1132 atparagraph3 9 '°AIR 1967 SC 1877 paragraph 12 onwards AiR 1997 SC 1228 at oaragraphs 5 & 6 R 2697 '26 a a cann 2003 pi SCW 43 an paregrapas 12 0 3 3 page 20 12009 aip 43.47 3626 at paragrapn 12 -
- 63
77. Assuming for the purpose of argument that the land in question is a 'State forest' under the Forest Rules of 1978 and consequently a State forest' under the Forest Regulations of 1 900, at the threshold, there is no material forthcoming from the State as well as the Forest Department, the custodian of records, as to how during the ear 1942-43 land measuring 170 acres 30 guntas, and during the year 1949-50 an extent of 655 acres 32 guntas in SyNo. 1 of Kadugodi Plantation was admittedly occupied by Military Department under the erstwhile Govt. of India, and who erected barracks and other buildings on said land much less delivery of its possession to the Commandant of the Mysore Special Reserve Police,
78. The maps of the year I 873 and the re-survey map at rae year i92 Annexures-Ri ana P2, respectively, enclosed to the affidavit of the Commissioner of survey do not describe the existence of I -64- plantation in the western side of Sy.No. 1 since the marking on the map on the eastern side are said to represent frees. The Prati Book Annexure-R2 and the akarbandh of the year 1938 Annexure-R3 enclosed to the affidavit, stating that Sy.No.1 measures 677 acres 3 guntas, do and is classified as "kharab" not certify existence of plantation. So also the second reclassification of Prati book of the year 1959, does not record the construction of barracks, buildings, etc. The deponent in the affidavit affirms that the land measures 677 acres 3 guntas, while the akarbandh of the year 1966 Annexure-R5 certifies the very same extent.
79. The letter dt. 30.3.1950 of the Chief Commissioner of Forest Annexure-S addressed to the Secretary to Government, LSG Department states that in a spot inspection of the land in Sy.No.1 as on 12.12.1950, along with District Forest Officer, Bangalore, having observed large number of populous L " C, a Ij CD CD ;CD CD I Q 0 C, CD CD C, 0 a.
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Order dt. 196 1950 and the issue of a discharge certificate as agreed to in the Conservator of Forest in his letter dt 13.2 1950 while informing the fact of derequisitioning of 572 acres 6 guntas of Kadugodi Plantation with a request to handover the land to Deputy Commissioner. Bangalore District, from the record what transpires thereafter is that the Deputy commissioner by letter dt. 15.7.1950 called upon the Amaldar to submit a report over taking possession of the land from the forest Department and to ascertain whether any other i-ea in the plantatior is in he occupation of the Mthtdn- Department $O r cø J C t A 4 4 t emeiges is that the State and the Forest Department C. v rtrrr' pr i s the Goi,t. (infer di. IC. i, 1 osr, when iouid 11 i ) I LJIflJtfT Reuiauon 211 S ran s' R' EU1at1')iS 11 1U'$3 in -67- the matter of the plantation. So also then is apparent inconsistency over the exact extent of plantation in Sy.No. 1, since the revenue and survey records disclose 677 acres 3 guntas, while the Forest Department, at the first instance, in the notification dt. 29.5.1986, claims to be 711 acres, and the claim for compensation for Military Department discloses 655 acres and 32 guntas, at a point of time, and thereafter 855 acres 32 guntas. It is intriguing to note that in the letter dt. 12/13.8.1969 of the Divisional Forest Officer, it is stated that out of a total extent of 742 acres 6 guntas, an extent of 572 acres 6 guntas is released to the Revenue Department by Govt. Order No. AF 2716-19 dt. 19/6/1950 and an extent of 147 acres is occupied by the military, while the balance of 29 acres is under the control of the Forest Department.
83. These inaccuracies coupled with the, non disclosure of material information to cause harm to the 1K
-68 petitioners is an important factor to be taken into account. The right to entire information as regards the claim of the Forest Department over the land in 53 No 1 as a reserve forest even after the Got. Order No iSP 2716-19 dt.19/6/1950. la) at heart of the matter complained of. The KIADB had lead the petitioners to believe, almost five decades ago, that they could rely upon the KIADB and the State government to be reliable and responsible for the notifications, following which the petitioner in w p 7200/08 paid Rs.39,27 41 625/ as consideration for sale of the land allotted Therefore he relevanc, of original rccords in particular. the decision of the State eading to the ssu of th c. notifications unuer the KIADB Act, as weil as the ocrur i OrIr o F 7 '6 l escertain 'vither it i-as in fa' t exercise of power i the a u ay ]t I I i°OO. t. r.lease thy gn;nn:ent j'lctPtaU?fl fr.m State he _t r ' t, t in -. is o b 69 rational, fair and not arbitrary rhis unconscionable conduct is akin to breach of trust, which in common parlancc is kno s misleading 84 ft is not in dispute that 1 41 acres of land in SvNo. I forming the western portion was in possession of the Military from 1942 and thereafter with the Commandant Mvsore Special Police put to use for construction of barracks, buildings and as a vehicle depot. when handed over to the r 3d respondent KIADB.
as indicated in Annexure3 to its statement of objections. as also the Govt Order No. RD 60 SST 70 dt 24 1970 reftrerce to which is made in Annexu e R3 though espeG of wn other items of properties Jr he bse e o rd in na ia i d i as up he S:t ard s ttfit' t oJac' oeer (r th t 0 it ef d u r n xu R o light ver. rwt0r th Stan -ctc sd poncr 1 ndr the K ja a lu ci u 'c ' cc ic tak 4 -70- Forest Act 1963, when it directed the handing over of its properties to the then Mysore Industrial Development Board in the year 1970. The instrumentality of the State by not placing relevant material before Court which might throw light upon the matter in question is really to obtain a decision in the absence of material and information which a properly informed decision requires, in short, to obtain a decision on imperfect knowledge.
85. Admittedly the State exercised jurisdiction under Section 3(1) of the MAD Act declaring as "industrial area" 148 acres 20 guntas (119 acres + 29 acres 20 guntaa) in Sy.No. 1 of Kadugodi Plantation and also another notification declaring that the provisions of Chapter VII of the State Act would come into force from that date, in respect of the said lands. It is useful to refer to the definition of the word "notification" under Section 2(8) of the State Act to mean published in IA
-71 the official gazette. From out of the said extent of land 141 acres was handed over to the then Mysore industrial Development Board on 195.1 )72 by the Commandant. Mysore Special Reserve Police, 'hile 29 cares of the plantation was ordered to be released to the Revenue Department to be transferred to Commerce and industrial Department for disposal for industrial purpose by order dt 5/6 1.1972
86. Section 28 of the Karnataka Forest Act, 1963 (Karnataka Act )/64) e f 212 1964 empowered the State Government by notification to direct that from a date to be specified ii' such notification mv forest or any pox-nor there rn nstit ted s a c er e ores unde- the Act shall cease to be a reserve torest The or Not. u icd j,a ct 21 ft said A,t c r v€en t.ahlisl c I 'r hi dli ial Latett fl'er is no rlisputr that tije Staic CTo'. 4id ot issue a ) c c 2 i p I * C) c I ) C) i' ii ft C) 1 t C 0* C) 0 C) rI •1 C) W ÷ g C) C) r C) C) C) sL) C) I J C) r+ C) C) C) C) 0 a 0' C) 0' m r -t --4 0 , 2 1 0 C) 0 E g z 0' a 0' 0 0 C 0 0 0 rI C) C) 0 0' 0 C) ES. C) C) 0 0 C :
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Point Nos.2 and
3 arc keiit open fo
in an appropriate t consideration
case.
PONT No. 4
89. Notice dt. lh.4.2008
AnnerureA in
W.P.7200, 2008 is
bereft of relevant
material particula
rs
except for an alle
gation of violation
of certain proision
s
of the Karnata
ka Forest Act
and the Fores
t
Conservation Act,
1980. The notice
makes no referenc
e
to particulars
over nature of
violations by th
e
petitioners. The
re is also no refe
rence as to ho'c
the
land is reckoned
to be a resene fo
rest. in short, the 1%?
respondent seeks
an explanatior w
ithout informmg th
petitioners over th e
e reasons fr
the cricjvsion th
a' 'he
land is resena
len-st Th notice. n rn.
ntke is
unsustainable
Port "P is aunt red
accor'iing
PomT NoB 5 AND
6:
co Jr height jfatisv
it' v No 1 sip--. its
xu t1c - 1--. )1
_I of t'1 "It u' -rifl--t' .n
I
76
16 3.2012 is unsustainable and the order dt 992009
Annexure-K in W.P.No 29765 66/2009 of the 1't
ii spondent is ilk gal and unjustified.
91 Learned Special Counsel for the jst
respondent submits that the finding of the learned Single Judge that the land in Sv.No. 1 Kadugodi Plantation is not a reserve forest. m W.P.No. 14649/2007 filed in the South Western Railways, Respondent No 1 in W.P No 7200/2008 was in the absence of placing on record the notification of the year 1901 and bnnging t light Sectior 23 o thc Karnataka Forest Act. 1963
92. ft 's true that neithti the Fnrest Rules of 1879 no U Msor Fo t'tg Uo 1900) t iotiFn.tnn cn 71 NC,! 'r Sect,ri ...3 ni the arnataca r I U o 1' bC ds re lot i befon- tn.- lc.uneu Sir-az udgv t wept he tr,tthcntio.
It 0 W t U ic q I of
-I
portion of the land in Sv, No.1 Kadugodi Plantation by the State Got in exercise of its eminent domain power under KIAD Act 1963 Nevertheless the learned Single Judge haring held that the land in Sv. No.1 is not a reserve forest is in tandem with the finding recorded in these petitions o'er point No 1. Even otherwise the fact that the 1 respondent and the South Western Railways are parties in SLP said to be pending before the Apex Court it is unnecessary to t enture into the claims of the South Western railways in these petitions.
93. As the land measuring 119 acres 29 acres 20 gun as totaling 18 acres 0 guntas of Yadugodi Pa ta bj 1 t e s r adc thc pt tiU , not )ut o acres itas, r;eastci t' th rriu 'S urnccessarx v.
go into 3 e 3 goiitx ol tho oIlc,trncllts rnadt b' 3z KIADP
to the rcsponcien ' ese pern ens froro L f t3j
xtcr c
-8
In the result, the petitions succeed. Notice dt. 16.4 2008 Annexure-A: the Government Order No CI 444 SPQ 2009 dt. 163.2012 in W P No 7200/2008. and the Order dt 9.9 2009 Annexure K n W.P.No.2976a 66/2009 stand quashed.
jUtCiE pb'rdIn