Sri Hanumantharaju vs. The State Of Karnataka

Writ petition in WP No.28076/2023 is filed by one Sri.Mahesh and 37 others claiming to be the owners in possession of certain parcels of land of various Survey Nos. 13, 14, 15, 16, 17, 18 of Muddappanahalli village of Bukapatna Hobli, Sira Thaluk, Tumkur District, seeking following common reliefs; HC-KAR NC: 2026:KHC:17945 "a) To Issue writ of Mandamus in the nature of declaration declaring that the Notification bearing No. A and F 5514 FT 98 47-2 dated 03.06.1948 issued by then Government of his Highness the Maharaja of Mysore at Annexure-A is as inoperational and null and void due to delay and latches. b) To issue Writ in the nature of Certiorari quashing the proclamation dated 12.10.2023 bearing No. A VAYA/TUMA/ARANYA ADHISUCHANE/CR-12/2023-24 issued by the respondent No.2 at Annexure-B"

Writ petition in W.P No.28315/2023 is by one Smt. Nagarathnamma and 40 others claiming to be the owners of different parcels of land in Sy.Nos. 46, 47, 48, 49, 50, 51 and 52 of Madanehalli Village are before this Court seeking following common reliefs;

Learned Senior counsel appearing for the counsel for the petitioners had raised following grounds; HC-KAR NC: 2026:KHC:17945

1 That the notification at Annexure-A dated 03.06.1948 published on 24.06.1948 in the Mysore Gazette was issued under Section 4 of the Mysore Forest Act, XI of 1900 (for short Act, 1900) by the then Government of His Highness Maharaja of Mysore in terms of which it was proposed to constitute the area boundaries which is described in the schedule to the said notification as a "Forest Area" under the provisions of the said Act. That by the said notification Sub-Division Officer, Madhugiri Sub-Division was appointed as a Forest Settlement Officer for the purpose of conducting enquiry into and determine the existence, nature and extent of any rights claimed by or alleged to exist in favour of any person etc., in the area comprised of the said proposed Forest Area.

That after lapse of over 7 decades, the respondent/State has sought to issue a notification dated 12.10.2023 under Section 5 of the Karnataka Forest Act, 1963 (for short Act, 1963) as per Annexure-B, calling upon the petitioners and various other persons who are in occupation of lands forming part of the said area to participate in the enquiry and to HC-KAR NC: 2026:KHC:17945 establish their rights for the purpose of publishing the final notification under Section 17 of the Forest Act, 1963. 4. 3. That Annexure-B suffers from inherent procedural defects in which the Officer who purported to have issued the said notification is not the one who had been appointed in the Notification dated 03.06.1948 at Annexure-A. That the respondent/authority could not take benefit of the notification issued under Section 4 of the Mysore Forest Act, 1900, inasmuch as the said Act having been repealed, unless different intention appeared, there was no saving of the effect of the earlier notification in terms of Section 6 of the Karnataka General Clause Act. Elaborating on the said submission, learned Senior Counsel referred to the term "proposed", found at Section 4 of the Act, 1900 with the term "decided" found at Section 4 of the Act, 1963. 4. 4. That the said two terminologies operate in completely different domain whereas under the Act, 1900 it was required to be a mere "proposal" whereas in the Act, 1963, it required a "conscious decision" of land having been declared/decided to be a Forest Land. That unless the said condition was satisfied, the HC-KAR NC: 2026:KHC:17945 respondent No.2 could not have issued notification at Annexure-B, as it runs contrary to the intention which appeared from the language used under Section 4 of the Act, 1900. 4. 5. That since right to property which was earlier a fundamental right has now become a constitutional right, petitioners cannot be deprived of the same unless the same is in accordance with procedure established by law. That though the present notification at Annexure 'B' has been issued after lapse of 77 years from the date of issuance of Annexure-A, there has been no whisper in the subsequent notification, as such the same suffers from delay and laches.

The notification at Annexure-B is signed by one Aranya Vyvastapanadhikari, who is not a person authorized under Annexure-A notification. It is only a Sub-Division Officer of Madhugiri Sub-Division who is authorized to issue notification.

Referring to document at Annexure-R7 filed along with the statement of objections filed by the respondent/State submits that even the Forest Settlement Officer who is a signatory to Annexure-B was not appointed in the manner HC-KAR NC: 2026:KHC:17945 known to law as on the date of issuance of Annexure-B. That even before his appointment he has issued Annexure-B which is that; HC-KAR NC: 2026:KHC:17945

1 the then Highness of Maharaja of Mysore was competent to issue notifications during the period between 15.08.1947 and promulgation of Constitution.

He refers to Section 117 of the Act, 1963 to read the effect of the Repeal and Saving Provisions provided thereunder, and submits that by express terms the Mysore Forest Act, (though referred to as the Karnataka Forest Act) has been repealed with the express provision that any action taken under the previous Act would remain unaffected.

that Annexure-B has been issued in furtherance to Section 5 of the Act, 1963, which in turn contemplates issuance of such notification after issuance of notification under Section 4 of the Act, 1963. Since the language and intent emanating under the Mysore Forest Act, 1900 and the Karnataka Forest Act, 1963, are similar and synonymous, the intention cannot be held to be contrary to one contemplated under the Act, 1900. That mere usage of the word "Proposed", and "Decided" would not make much of a difference, as both the legislation intend to achieve the same purpose. HC-KAR NC: 2026:KHC:17945

He refers to the judgment of the Apex Court in the case 562/2009 to submit that the present notification at Annexure-B HC-KAR NC: 2026:KHC:17945 have been granted lands, subsequent to issuance of notification Forest land, it remains a Forest land forever unless de-notified in the manner known to law as provided under Section 28 of the Act. Therefore, the contention of there being a delay of 77 years is inapplicable to the facts of this case. HC-KAR NC: 2026:KHC:17945

He also refers to Section 2 of the Forest (Conservation) Act, 1980 to submit that unless a permission for diversion of the Forest for non-forest use is obtained from the Central HC-KAR NC: 2026:KHC:17945

that the petitioners are at liberty to explain their right, title and interest if any by submitting their response in document and the same will be considered in accordance with law.

Heard. Perused the records.

Point that arise for consideration is:

The principle which has been laid down in this case is that whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purposes of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore, subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. HC-KAR NC: 2026:KHC:17945

Since the effect of a repeal is to obliterate the statute and to destroy its effective operation in future, or to suspend the operation of the common law, when it is a common law principle which is abrogated, any proceedings which have not culminated in a final judgment prior to the repeal are abated at the consummation of the repeal. When, however, the repeal does not contemplate either a substantive common law or statutory right, but merely the procedure prescribed to secure the enforcement of the right, the right itself is not annulled but remains in existence enforced by applying the new procedure.

In the instant cases, there is a simultaneous repeal and the re-enactment and the A.P. VAT Act clearly saves the earlier provisions in toto. Consequently, rights and liabilities accrued or incurred under the A.P. GST Act shall continue even after it is repealed.

On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion becomes inescapable that whenever there is a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless the re-enacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the re-enacted enactment and the mere absence of the saving clause is, by itself, not material for consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether.

Viewed in the light of the above settled principles of law, there appears to be no incompatibility or inconsistency between Section 4 of Mysore Forest Act, 1900 and Section 4 of Karnataka Forest Act, 1963. It is appropriate to note provision HC-KAR NC: 2026:KHC:17945 of Mysore Forest Act, 1900 as well as Section 4 of Mysore Forest Act 1900 as well as section 4 of the Karnataka Forest Act, 1963, which reads as under;

Section 4 of Mysore Forest Act, 1900, reads as under; "

Whenever it is proposed to constitute any land a State Forest, the (State Government) shall publish a notification in the official Gazette-

Section 4 of Karnataka Forest Act,1900 reads as under;

Notification by Government.—(1) Whenever it has been decided to constitute any land a reserved forest the State Government shall issue a notification,-

Though the distinction is sought to be made by learned Senior counsel for the petitioners referring to the term "Proposed" employed under Section 4 of the Act, 1900 and the term "Decided" under the Act, 1963, the intention of both the legislation appears to be the same which is declaring any land 'a reserved forest' in the State.

As rightly pointed out by learned Additional Advocate General, Section 117 of the Karnataka Forest Act provides for savings of anything done or any action taken, or deemed to have been taken under the corresponding provisions of the Act. HC-KAR NC: 2026:KHC:17945

Section 117 of the Karnataka Forest Act, 1963 reads as under; "117. Repeal and savings.—The Indian Forest Act, 1927 (Central Act XVI of 1927), as in force in the [Belgaum Area], the Indian Forest Act, 1927 (Central Act XVI of 1927), as in force in the Coorg District, the Hyderabad Forest Act, 1355 Fasli (Hyderabad Act II of 1355 Fasli), as in force in the [Gulbarga Area] , the Madras Forest Act, 1882 (Madras Act V of 1882), as in force in the [Mangalore and Kollegal Area] , the Mysore Forest Act, 1900 (Mysore Act X of 1900), as in force in the Mysore Area, and the [Karnataka] Preservation of Private Forests Act, 1962 ( [Karnataka] Act No. 19 of 1962), are hereby repealed:

Section 4 of the Mysore Forest Act, 1900 is corresponding to Section 4 of the Act, 1963. The proviso to Section 117 of Act, 1963 read in the light of the principles of law enunciated in Gammon India Ltd (supra), the only conclusion that can be arrived at is that the action taken under the Repealed Act has to be construed as action taken under the corresponding provision to Repealing Act. The contention therefore urged on behalf of the petitioners, though at the first blush appears to be plausible a further probe into it in the light of settled principles of law noted above, makes it unacceptable. As such, the same cannot be countenanced.

The second ground of challenge to the process initiated is in-competency of the authority who issued notification at Annexure-B. It is contended that the notification- Annexure-A refers to the appointment of Sub-Division Officer of Madhugiri Sub-Division, as a Forest Settlement Officer for the purpose of conducting inquiry into and determine the existence, nature and extent of any rights claimed by or alleged to exist in the area comprised under the said proposed Forest Area in favour of any person etc., whereas the present notification at HC-KAR NC: 2026:KHC:17945 Annexure-B refers to "Aranya Vyavasthapanadhikari" and that the said two posts/designation are different. This submission also cannot be accepted as there has been change in nomenclature of the posts/Officers. However, Section 4(1)(c) of the Act, 1963 envisages appointment of an officer to be called "Forest Settlement Officer", who may have to be appointed by the State Government to represent it in the enquiry under this Chapter.

Respondent/State in the additional statement of objection produced Annexure-R7 which is a communication dated 27.6.2022 issued by the Office of Principal Chief Conservator of Forest to the Unit Heads of Chikkamagalur and Mysore area. Perusal of the said document would indicate that out of three applications that were received pursuant to the notification issued for appointment of the Forest Settlement Officer, application of two candidates were finalized, of which, one S.P. Kulkarni was selected to the post of Forest Settlement Officer to the Districts of Hassan and Chikkamangaluru. The said communication has further directed the Unit Heads to continue the process of interview and issuing of the appointment order. HC-KAR NC: 2026:KHC:17945

Though, learned Senior counsel appearing for the petitioners reading the said document has contended that the said document cannot be considered to be an order of appointment, in response, additional documents were submitted by learned AAG in the nature of communication dated 19.9.2022 by which the said S.P.Kulkarni has reported, he taking charge as the Forest Settlement Officer.

Another document, a Service Contract Agreement dated 21.09.2022 is also produced which indicate the said Sri.S.P.Kulakarni having been appointed to work as a Forest Settlement Officer for a term between 21.09.2022 and 12.11.2022. It is contended on behalf of the State that though the initial appointment was for a period for one year, the same has been periodically extended and as on the date when Annexure-B was issued, the said officer was discharging his duties as the Forest Settlement Officer and his term has been further extended as per Annexure-R1 dated 11.12.2023. 22. Another document at Annexure-R7, which is the Government Proceedings dated 19.12.2022 is produced HC-KAR NC: 2026:KHC:17945 indicating extension of the term of the said officer for a period of one year effective from 16.11.2022. 23. Holistically read, the aforesaid documents indicate that S.P.Kulakarni has been appointed as the Forest Officer vide Annexure-R7 and he has taken charge effective from 19.09.2022 and has been discharging as Forest Settlement Officer even during the period when Annexure-B was issued. Therefore, the grounds urged on behalf of the petitioners regarding the said officer lacking competency cannot be countenanced.

One another submission made by learned counsel for the petitioners is with regard to declaration of area. In that, it was pointed out that in Annexure R7, dated 27.06.2022, the said officer had been appointed only to the Districts Hassan and Chikkamagaluru, whereas the subject properties are located within Tumkur District. An answer in this regard is also provided by learned AGA referring to Annexure R7, wherein the revenue areas have been reworked, bringing Madhugiri, Tiptur, Tumkur, Hassan, Chikkamagaluru within the Hassan circle. As such, even the said ground also cannot be countenanced. HC-KAR NC: 2026:KHC:17945

As regards the consequences of issuance of notice is concerned, necessary to note that Section 5 of the Act contemplates the issuance of notification and publication of the same in Kannada and any other regional language of the area at the headquarters of each Taluk, in which any portion of the land comprised in such notification is situated. Though it was contended that the publication in Kannada and other regional language has to be made in the newspaper, no such requirement is contemplated under Section 5. It is submitted that the notification has been widely published at the headquarters which, in the considered view of this Court stands, complied with.

Thus there are no illegalities and irregularities either in issuing notification dated 03.06.1948 at Annexure-A, or in the notification dated 12.10.2023 at Annexure-B.

Necessary to note the notification at Annexure-B has merely called upon the persons like petitioners to appear and submit their version justifying their claim over the property. Provision of Act more particularly Section 7 contemplate an enquiry to be conducted by the Forest Settlement Officer. The HC-KAR NC: 2026:KHC:17945 rights of the parties will be determined in the manner prescribed in the Act. It is only then, the Final Notification under Section 17 would be issued. Since Annexure-B is now held to be valid and subsisting, it is open for the petitioners to appear and file their version along with the documents supporting and justifying their claim as called for by the respondent-State or in particular Forest Officer- Respondent No.

Thereupon Forest Officer-respondent No.2such shall consider such objections, representation, documents as the case may be, strictly in accordance with law, and afford sufficient opportunity to the parties and pass appropriate orders.

No grounds are made out for quashing of notifications at Annexures- A and B.

Accordingly, following; ORDER i. Petitions are disposed of. ii. Petitioners are at liberty to submit/file their objections/versions along with documents supporting HC-KAR NC: 2026:KHC:17945 /justifying their claim within 60 days from the date of receipt of certified copy of this order. iii. The Forest Settlement Officer/respondent No.2 shall consider such objections/versions to be filed by the petitioners, strictly in accordance with law after affording sufficient opportunities to the petitioners and pass appropriate orders thereon within an outer limit of one year from the date of submission of objections /versions by the petitioners. iv. It is made clear no opinion is expressed with regard to validity or otherwise of the grant orders made by the statutory authorities in favour of petitioners in respect of portion of land claimed by them as the case may be. v. All contentions are kept open. (M.G.S. KAMAL) JUDGE