- 1 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY 2025 PRESENT THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR WRIT APPEAL NO. 100400 OF 2024 (GM-FOR) BETWEEN: SMT. SMITHA, W/O. VINAYAK JADHAV AGE: 57 YEARS, OCC: PROMOTER / PROPRIETOR WHISTLING WOODZS BADAGUND VILLAGE, AT. PO. GANESHGUDI, OIDA TALUK, DIST: UTTAR KANNADA, REGIOSTERED OFFICE, JADHAV BUILDING, OPP. VRL LOGISTICS LIMITED, 9TH CROSS, MARATHA COLONY, DHARWAD, DIST. DHARWAD-580001 …APPELLANT (BY SRI. V. M. SHEELVANT, ADVOCATE) AND: 1. CHIEF CONSERVATOR OF FOREST AND APPELLATE AUTHORITY, CANARA CIRCLE, SIRSI-581401, DIST: UTTARA KANNADA, 2. THE ASSISTANT CONSERVATOR OF FOREST, DANDELI SUB-DIVISION, DANDELI DIST: UTTARA KANNADA-581325, 3. THE DEPUTY CONSERVATOR OF FOREST,HALIYAL DIVISION, Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 HALIYAL-581329,TQ: HALIYAL, DIST: UTTARA KANNADA-581329. 4. THE RANGE FOREST OFFICER DANDELI DIVISION, DANDELI DIST. U. KANNADA-581325 …RESPONDENTS (BY SRI.GANGADHAR J. M, ADDITIONAL ADVOCATE GENERAL; SRI. PRAVEEN K. UPPAR, ADDITIONAL GOVERNMENT ADVOCATE) THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, CALL FOR RECORDS, ALLOW THE WRIT APPEAL AND SET-ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE PASSED IN WRIT PETITION NO. 106142/2023 DATED 31/8/2024 IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD) The dispute that is resolved by the writ Court in the petitions in WP Nos.106142/2023 and 103168/2018 by the impugned order dated 31.08.2024, though it is about the decision to cancel - 3 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 the license/permission to run a resort in survey No.12A of Badagund village in Joida Taluk of Uttara Kannada District [the Subject Property], is essentially to resolve the dispute over the alleged encroachment by the appellant. The writ Court’s impugned order, while quashing the decision to cancel license, is predicated on certain conditions which require the appellant to identify the land that must be confined within its boundary in terms of the report filed and voluntarily remove the encroachment. 2. Though initially Sri. V.M. Sheelavant, the learned counsel for the appellant, proposed to argue for disposal of the writ appeal on merits, has sought for liberty to the appellant to file an affidavit undertaking to vacate the area marked as encroachment with a right to salvage construction and access to the property. In terms of the liberty reserved, the appellant has also filed an affidavit, but this did not bring about the quietus by consensus. It - 4 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 was next submitted before this Court that the dispute can be brought to a closure if the Forest Department itself is permitted to construct a fence for the subject property as per a survey sketch filed along with the Report filed in the writ proceedings. On behalf of the Forest Department, this suggestion was also accepted. 3. As such, this Court has called for a Report from the concerned of the Forest Department. After a survey of the subject property, a Report is now placed on record showing the markings for the construction of posts for fence to demarcate the subject property. As part of this Report, a drone picture [the Picture] is filed. This Picture shows the position of posts for fence in seriatim in Red along the boundaries of the subject property apart from the location of the existing construction. In this Picture, the [boundary of the subject property is marked in the Letters ABCDEF. The picture reads as follows:- - 5 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 - 6 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 4. This Court must now record that the appellants and the Respondents [the State/the Forest Department] accept that with the construction of a fence as per the Picture, there would be no dispute on the four sides of the subject property [which is pentagon in shape] and that the dispute is confined to one side which faces the Riverbank. However, Sri. V.M. Sheelavant submits that this Court may permit the appellant to withdraw the appeal in the light of these events with liberty to remove the alleged encroachment along the Riverbank in terms of the Picture within a reasonable time. 5. Sri. J.M. Gangadhar, the learned Additional Advocate General, submits that any liberty while permitting the appellant to withdraw the appeal must be in the context of the Forest Department’s specific case that certain temporary structures are put up immediately abutting the Riverbank and that the appellant must remove such construction. When - 7 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 queried, Sri. J.M. Gangadhar, on instructions of the Assistant Conservative Forest who is present in the Court, submits that there will be no dispute about access to the appellant’s property to the Riverbank, if the construction of the fence is complete along the subject property separating the Riverbank and that the appellant must remove very structures beyond the fence. 6. Upon a specific query, Sri. J.M. Gangadhar, again on instructions, submits that the appellant can also have access to the Riverbank through the subject property, but the appellant cannot put up any construction beyond the boundary line that is marked as there must be the requisite buffer. Sri. V.M. Sheelavant is heard in the light of this insistence on behalf of the Forest Department, which this Court must opine that it is well founded. Sri. V.M. Sheelavant submits that all the temporary structures beyond the fence along the Riverbank will - 8 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 be removed voluntarily and this Court must protect access to the appellant through the subject property to the Riverbank. 7. This Court must opine that the afore circumstances bring about a resolution to the dispute, but the Forest Department must complete the construction of the fence in terms of the Picture and this must be done expeditiously ensuring that there is an identified access to the Riverbank through the appellant’s property. The appellant must also be put on terms to not only remove the temporary structures beyond the fence to be constructed by the Forest Department along the Riverbank but also to ensure that there is no further construction beyond such line. In the light of the afore, the following: ORDER [A] The appeal is disposed of permitting the Forest Department to complete the construction of the fence as per the Picture [which is incorporated in - 9 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 this order] within 30 [thirty] days from today, and the appellant is directed to assist and cooperate with the Forest Department. [B] The Forest Department shall ensure that the construction of the fence along the subject property abutting the Riverbank as now directed shall be completed expeditiously with appropriate access to the appellant and every person claiming under the appellant in the subject property to the Riverbank, and if necessary through a gate. [C] The appellant is permitted to remove the temporary structures simultaneously with the construction of the fence, and if it is not removed, - 10 - NC: 2025:KHC-D:3506-DB WA No. 100400 of 2024 the Forest Department shall clear the same simultaneously. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE PJ/CT:VG/ LIST NO.: 1 SL NO.: 32