ORDER

The petitioner is before this Court calling in question order dated 25-03-2019 passed by the 1st respondent rejecting the application of the petitioner for use of pathway that he claims to be using from time immemorial.

2. Heard Sri Kiran V. Ron, learned counsel appearing for the petitioner and Sri B.V.Krishna, learned Additional Government Advocate appearing for the respondents.

3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-

The petitioner claims to be the absolute owner to an extent of

15.51 acres of land in Sy.No.538 of Kedamulloor Village, Virajpet Taluk, Kodagu District having purchased the same in terms of a registered sale deed on 21-11-2011. It is the claim of the petitioner that the said land is a revenue land forming part of Enclosure 1 to Gazette Notification dated 24-06-1908 and the said property has always been used for coffee cultivation and is being used for coffee cultivation as on date. It is the case of the petitioner that access to the property, in terms of the aforesaid Gazette notification dated 24-06-1908 is crystallized, it being reflected to be a 6 feet wide road for men and cattle. In the year 2015 an inquiry is sought to be conducted at the hands of the Department of Forest under Section 64A of the Karnataka Forest Act, 1963 (hereinafter referred to as the ‘Act’ for short) against the petitioner. A notice comes to be issued on 09-10-2015 to the petitioner alleging that he has encroached forest land and during the course of inquiry orders were passed for conduct of joint survey and the joint survey was partially done on 06-07-2017. The petition narrates that it is due to heavy rain, the survey could not be completed then. Pending inquiry/survey, access to the property of the petitioner was prevented on 16-08-2017 by respondents 2 to 4 – the Divisional Forest Officer, the Assistant Conservator of Forests and the Range Forest Officer by locking the gate that lead to the road and the road that lead to the property of the petitioner.

4. Aggrieved by the said action, the petitioner knocked the doors of this Court in Writ Petition No.42224 of 2017 seeking a direction by issuance of a writ in the nature of mandamus for non- obstruction by the respondents. This Court did not grant any interim relief, but taking note of the pending inquiry, the petitioner was permitted to have foot access to his property, but not vehicular access till completion of inquiry. Challenging the said order, the petitioner files writ appeal in Writ Appeal No.6442 of 2017. The Division Bench disposing the appeal permitted the petitioner to use the road to his property till completion of the inquiry, in modification of the order that was passed by the learned single Judge. It appears that contempt petition was also preferred for not complying with the order passed by the Division Bench and completion of inquiry results in passing of the impugned order dated 25-03-2019 by which it is held that the petitioner cannot use the road, as it is in encroachment of forest land. It is this order that drives the petitioner to this Court in the subject petition.

5. The learned counsel appearing for the petitioner would contend with vehemence that the Forest Department has been partisan towards the petitioner and the property of the petitioner, as officials of the Forest Department themselves ply lorries carrying logs/timber on the said road, as also patrolling jeeps now and then, but block the way of the petitioner and there is no access road anywhere for the petitioner to get into his property. He would place strong reliance upon the Gazette Notification of the year 1908 to contend that pathway was available then, which was recognized in the Notification and now there is a 8.5 feet road existing which is motorable. He would submit that the petitioner be permitted use of vehicle within the parameters of the Notification declaring permitted uses in the sensitive zones