H.E. GIRISH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioners have assailed notices at Annexures-J to J12 issued by the Range Forest Officer, Harappanahalli Range, Harappanahalli, as well as the Government Notification dated 22-6-1991 issued by respondent 1 (Annexure-K). They have also assailed the communications issued by respondent 4 dated 7-2-2013 and 3-12-2012 (Annexures-L, M and N). The petitioners have sought a direction for issuance of licences to quarry building stone and to renew the licence as far as petitioner 1 is concerned. It is the case of the petitioners that they are holders of quarrying lease and engaged in quarrying building stone in the land bearing Sy. No. 399/E measuring approximately 1,073.31 acres of Uchangi Durga Village of Harappanahalli Taluk, Davangere District. That an extent of 1,059.14 acres of that land was transferred by the Tahsildar, Harappanahalli to the Forest Department on 16-8-1978. But on 28-2-1991, the office of the Tahsildar, Harappanahalli, directed the Village Accountant and the Revenue Inspector to change the mutation in respect of the aforesaid extent in the name of Government-Revenue Department Subsequently, the Range Forest Officer, Harappanahalli, by his letter dated 19-3-1991 certified the land as belonging to Revenue Department. The State then issued notification dated 22-6-1991 under Section 4 of Karnataka Forest Act, 1963 (hereinafter referred to as "the Act") notifying Sy. No. 399/E measuring 422.32 hectares and Sy. No. 501/B3 measuring 4 hectares at Uchangi Durga Village, Arasikere Hobli, Harappanahalli Taluk, Davangere District, to be Reserved Forest (hereinafter referred to as "lands in question" for the sake of convenience). It is the case of the petitioners that subsequently, no steps have been taken under the said Act, but the Revenue Department has granted several extents of land notified under Section 4 as Reserved Forest and has also recommended regularization of unauthorized occupation in the very same survey number. When the matter stood thus, the Range Forest Officer-respondent 3 issued notices at Annexures-J to J12 directing cessation of quarrying operations immediately on the premise that the land has been declared as reserved forest. Petitioner 1 requested respondent 3 for a copy of the final notification but a reply was issued as an endorsement dated 16-1-2013, stating that the final notification has not yet been issued. When petitioner 1 sought renewal of the licence, the Deputy Conservator of Forest-respondent 4 herein informed by his communication dated 7-2-2013 that renewal of a mining lease cannot be granted in a reserved forest area. An application for grant of fresh lease of land made by petitioner 1 to an extent of 1.50 acres in Sy. No. 399/E1 of Uchangidurga Village has also been rejected vide Annexure-M as also the application with regard to an extent of one acre of land in the same survey number is rejected by Annexure-N. Contending that the petitioners are prevented from carrying on their business of quarrying building stone and being aggrieved by the notices issued by the Forest Range Officer, they have preferred these writ petitions.

(2.) The respondents have filed statement of objections admitting that notification dated 28-2-1991 had been issued as per Annexure-B transferring C and D class of lands in favour of Forest Department for the purpose of raising plantation and afforestation. It is also admitted that on 22-6-1991, notification at Annexure-E has been issued by the State Government to declare the land in question as a reserved forest under Section 4 of the Act. That in view of Section 6 of the Act, it is impermissible to lease out any land included in the notification without the express sanction of the State Government. That a final declaration/notification under Section 17 of the Act has not been published by the State due to various "unexplainable reasons". But the delay in issuance of such a notification would not permit the petitioners to carry on quarrying activity in the lands in question. Also there is no period of limitation within which time the final notification needs to be issued. Reliance placed by the petitioners on the order dated 11-12-2012 passed by this Court in the case of V. Sampangi Ramaiah v. The Director/Commissioner, Department of Mines and Geology, Bangalore and Others, 2014 1 KarLJ 181 has not been accepted by the State as S.L.P. No. 11466 of 2013 has been filed against the said order and the same is pending consideration before the Hon'ble Supreme Court. It is also admitted that though several quarrying leases have been granted in the lands in question, the same is without obtaining an explicit sanction from the Government as required under Section 6 of the Act. Though there is an explicit stipulation that 'no objection' should be obtained from the Forest Department, the same has not been obtained in certain cases prior to granting of quarrying lease. As a notification under Section 4 of the Act has been issued in respect of the lands in question, it was incumbent upon the petitioners to obtain the clearance from the Ministry of Environment and Forest (MOEF), Government of India, under the provisions of the Forest (Conservation) Act, 1980 (hereinafter referred to as "the Central Act" for the sake of convenience) as the lands in question have been notified as reserved forest. Therefore, the State has sought dismissal of the writ petitions.

(3.) Learned Senior Counsel, Sri Udaya Holla, appearing for the petitioners, submitted that the transfer of the lands in question as C and D class lands by the Revenue Department to the Forest Department and subsequently, re-transfer to the Revenue Department would clearly indicate that the lands in question are revenue lands. Though notification dated 22-6-1991 has been issued by the Forest Department under Section 4 of the Act proposing to notify 422.32 hectares of land including the lands in question as reserved forest, no further notification has been issued or action has been taken. Pursuant to Section 5, there has been no proclamation issued and the proceedings contemplated under Sections 7 to 17 of the Act have not taken place. But since 1991, there have been grants made to various persons for cultivation as well as for house sites. That on following the legal procedure, quarrying leases for extraction of building stone were granted to the petitioners in the year 2010. But after a lapse of two years, the Range Forest Officer, Harappanahalli Range, issued the impugned notices to stop extracting building stones on the premise that the quarry lands have been declared to be reserved forest under Section 4 of the Act. That in the case of V. Sampangi Ramaiah, the Division Bench of this Court has held that once a notification has been issued under Section 4 of the Act, proposing to constitute any land into a reserved forest then a declaration under Section 17 of that Act shall be made within a reasonable time. If the same is not done, notification under Section 4 is liable to be quashed. Though a Special Leave Petition has been filed against the said order, the Hon'ble Supreme Court has granted an order of status quo as on the date of the order, but there has been no stay of the order. Learned Senior Counsel further contended that the provisions of the Central Act would not apply as a prior permission under that Act is required only when forest land is sought to be utilised for non-forest purpose. But in the instant case, since no steps have been taken to declare the lands in question as a reserved forest by issuance of a notification under Section 17 of the Act for over two decades; the land does not become a reserved forest and much less is it a forest; in fact, the lands in question continue to be revenue lands as per the revenue records.