The State Of Karnataka vs G. Ramanarayana Joshi on 17 May, 2022


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Supreme Court of India

The State Of Karnataka vs G. Ramanarayana Joshi on 17 May, 2022

Author: A.S. Bopanna

Bench: L. Nageswara Rao, B.R. Gavai, A.S. Bopanna

                                                  REPORTABLE

                IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NO…4117 OF 2022
           (Arising out of SLP (Civil No.23651 of 2019)



The State of Karnataka & Ors.                      .…Appellant(s)


                                Versus

G. Ramanarayana Joshi                             ….Respondent(s)




                         JUDGMENT

A.S. Bopanna, J.

1. Leave granted.

2. This appeal is directed against the judgment dated

17.07.2019 passed by the High Court of Karnataka at

Bengaluru in Writ Appeal No.2319 of 2018 (KLR­RES). Through

the said judgment, the Division Bench has dismissed the appeal

filed by the appellants herein. The intra­court appeal before the

Page 1 of 19
Division Bench was filed by the appellants, assailing the order

dated 13.09.2017 passed by the learned Single Judge of that

Court, in W.P. No.46003/2013 (KLR­RES). The learned Single

Judge had allowed the writ petition filed by the respondent

herein and had quashed the communication that was impugned

at Annexure M and N to the writ petition. Consequently,

direction was issued to the appellants herein to withdraw the

land belonging to the respondent which was transferred to the

Forest Department and restore the same to the appellant in

terms of sub­rule (2) to Rule 119 of the Karnataka Land

Revenue Rules, 1966 (for short, ‘Rules 1966’).

3. The brief facts necessary to be noted for the disposal of

this appeal are; the respondent claims to have succeeded to the

property bearing Survey No.170 measuring 45.01 acres situated

in Horanadu village, Kasaba Hobli, Mudigere Taluk,

Chikmagaluru District. The said property is claimed to have

been purchased by his ancestors, namely, Bhima Jois, son of

Venkatasubba Jois of Horanadu Village in a public auction held

on 10.12.1887. The ancestors of the respondent and thereafter,

the respondent who succeeded to the property, claim to have

continued in uninterrupted possession of the said property.

Page 2 of 19
However, the land revenue having not been paid, the property

was forfeited to the Government during 1892. Though that was

the position, the property remained in the possession and

enjoyment of the family even after such forfeiture and they

continued to enjoy it. To that effect, the Khetwar extract for

Survey No.170 (Old Survey No.132) of the year 1919 is

produced in the writ petition and relied upon by the

respondent.

4. When this was the position, through notification no. RD

50 LGP 96 dated 07.09.2000 the Government amended sub­rule

(2) to Rule 119 of the Rules 1966 providing for restoration of the

forfeited property, if such application is made during a period of

not more than one year from the date of the commencement of

the amendment i.e. within one year from 08.04.2000. The said

benefit was granted notwithstanding the expiry of the period

allowed under sub­rule (1) to that Rule. The appellant taking

benefit of the said amendment filed the applications on

30.09.2000 and 05.10.2000 seeking for restoration, which were

well within the time prescribed. When the said applications had

not received consideration, the respondent was before the High

Court in W.P. No.11334/2007 seeking for a direction to

Page 3 of 19
consider the applications. The learned Single Judge disposed of

the writ petition on 24.07.2007 with a direction to the Deputy

Commissioner to dispose of the applications filed by the

respondent.

5. On consideration, the applications came to be rejected by

order dated 27.11.2009. The respondent claiming to be

aggrieved by such rejection, filed another writ petition in W.P.

No.36324/2009 (KLR­RES). The learned Single Judge allowed

the writ petition on 26.06.2012 quashed the order dated

27.11.2009 impugned therein and directed the Deputy

Commissioner to consider the applications afresh on merits, by

taking into consideration reports of the Assistant Commissioner

and Tehsildar, as also the observations contained in the order

passed by the learned Single Judge on 26.06.2012. However,

contrary to the directions issued, the claim of the respondent

was negatived by the order dated 19.08.2013 passed by the

Additional Chief Conservator of Forest. The Forest Department

also issued notice dated 16.09.2013 based on the said order,

which were assailed in W.P. No.46003/2013 (KLR­RES). The

learned Single Judge having taken note of all these aspects of

the matter allowed the writ petition by the order dated

Page 4 of 19
13.09.2017 as noted above. It is against the said order the

appellants herein had preferred the intra­court Writ Appeal

No.2319 of 2018 (KLR­RES), which was dismissed by the order

dated 17.07.2009, assailed herein.

6. In the background of the factual narration leading to the

present appeal, we have heard Mr. Nikhil Goel, AAG with Mr.

V.N. Raghupathy for the appellants, Mr. Raghavendra S.

Srivatsa with Mr. P.N. Manmohan for the respondents and

perused the appeal papers.

7. The contention on behalf of the appellants is that the land

was forfeited as far back as in the year 1892 and as such the

application filed under Rule 119 of the Rules 1966 would not be

maintainable. It is contended that even assuming the amended

sub­rule is held applicable the same specifies that the

application would be entertained only in respect of the land

which has not been disposed of otherwise. It is contended that

in the instant case the Government of Karnataka by order dated

20.07.1994 had transferred an extent of 2.58 lakh hectares of

‘C’ and ‘D’ category lands to the Forest Department for the

formation of land bank, which included the extent of land that

is in issue, in this proceeding. It is contended that the land was

Page 5 of 19
‘disposed of’ and was therefore not available to be considered for

restoration under sub­rule (2) to Rule 119 of Rules 1966. It is

the appellant’s case that the G.O. dated 20.07.1994 whereby

the land was transferred to the Forest Department had in fact

been assailed by the respondent herein in W.P. No.10786 of

2006 (KLR­RES) before the High Court of Karnataka but the

learned Single Judge disposed of the writ petition on

08.08.2006 without interfering with the said notification. In

that circumstance, the application filed for restoration in

respect of land which has already been transferred to Forest

Department was not sustainable and the competent authority

had rightly dismissed the application which ought not to have

been interfered with by the High Court. Though in the present

round of proceedings the benefit was granted by the learned

Single Judge in W.P. No.46003/2013, the issue essentially was

considered in the earlier writ petition in W.P. No.36324/2009

wherein reconsideration was directed. The learned Additional

Advocate General while referring to the order passed therein

would seek to contend that the very observation contained in

the said order about the predicament for the Deputy

Commissioner due to the order dated 20.07.1994 in W.P.

Page 6 of 19
No.11334/2017 should have tilted the consideration in favour

of the appellant. In that light, it is contended that the lands

which were forfeited to the government and being transferred to

the Forest Department were not in the possession of the

respondent.

8. The learned counsel for the respondent while seeking to

sustain the order passed by the Division Bench has also made

reference to the order passed by the learned Single Judge in the

present round of the proceedings, as well as the order in the

earlier writ petition. In that light, it is contended that the

property in question is the property which was purchased by

the ancestors of the respondent in an auction. Hence as on the

date of forfeiture, the property was a privately owned land and

the forfeiture was due to non­payment of land revenue arrears.

Though the forfeiture had taken place by operation of law,

factually the ancestors had continued to be in possession and

the appellant has succeeded to the same. The property in

question is being cultivated as a plantation. The house of the

respondent and a temple is also situated therein.

Notwithstanding the Government Order dated 20.07.1994 the

respondent had continued to remain in possession and

Page 7 of 19
cultivation of the property. There is no other contrary material

available on record to dispute the claim of the respondent.

When this was the position, a right became available to the

respondent by amendment of sub­rule (2) to Rule 119 of Rules

1966. The benefit of the amendment made on 07.09.2000, with

effect from 08.09.2000 was availed by the respondent and an

application for restoration was made on 30.09.2000 and

05.10.2000 within the time frame provided under the sub­rule.

It is contended that the High Court having taken into

consideration all these aspects of the matter and also the fact

that the reports submitted by the Tehsildar and the Assistant

Commissioner which established the position that the

respondent continued to be in possession, has granted the

relief, which does not call for interference.

9. In the light of the contentions, keeping in view the

background referred to by the respondent herein, the document

of the year 1919 at Annexure­A to W.P. No.36324/2009 would

disclose that the property originally was a privately owned

property in the name of Bhima Jois, under whom the

respondent is claiming right and title to the property. Though

that is the position, the indisputable aspect is that the property

Page 8 of 19
which is said to have been purchased in the public auction by

the ancestors of the respondent was forfeited to the Government

on 23.08.1892 for non­payment of arrears of land revenue. One

aspect of the matter is with regard to the predecessor of the

respondent having continued to be in possession of the property

and thereafter succeeded to by the respondent. On that aspect,

the finding of fact recorded by the competent authority and

noted by the High Court would be relevant since it will not be

open for reappreciation in the limited scope under Article 136 of

the Constitution, in a petition of the present nature. The other

aspect of the matter is regarding the right available to the

respondent to seek restoration and in that regard whether such

right subsisted in favour of the respondent.

10. The right to seek restoration is traced to sub­rule (2) of

Rule 119 of Rules 1966 which read as hereunder:­

“119. Restoration of forfeited occupancy or
alienated holding on payment of the arrear
due.­

(1) The Deputy Commissioner may restore any
forfeited occupancy or alienated holding which has
been purchased on account of the Government
and which has not been disposed of otherwise
within three years from the date of forfeiture on
payment of the arrear in respect of which the
forfeiture was incurred together with the amount

Page 9 of 19
of land revenue in respect of the holding from the
date of forfeiture to the date of restoration and the
expenses incurred so far in the recovery and
further proceedings as may be forced by the
Commissioner.

(2) During a period of not more than one year from
the date of commencement of Karnataka Land
Revenue (Amendment) Rules, 2001 the Deputy
Commissioner may, notwithstanding the expiry of
the period specified in sub­rule (1), restore any
forfeited occupancy or alienated holding which has
been purchased on account of the Government
dues and which has not been disposed of
otherwise, to the person who has not been
dispossessed of such occupancy or holding
immediately before such commencement, on
payment of the arrears in respect of which the
forfeiture was incurred together with the amount
of land revenue in respect of the holding from the
date of forfeiture to the date of restoration and the
expenses incurred so far in the recovery and
further proceedings as may be fixed by the Deputy
Commissioner.”

11. By the amendment to sub­rule (2) by way of substitution

with effect from 08.09.2000 the final effect is that an

application was required to be filed within one year from the

date of substitution, which was filed by the respondent on

30.09.2000 and 05.10.2000, seeking restoration.

12. Having taken note of the same what is also to be taken

into consideration is that the property which is the subject

matter of this proceeding was also a part of the total extent of

2.58 lakh hectares which was transferred to the Forest
Page 10 of 19
Department for formation of land bank through the Government

Order dated 20.07.1994. The Government Order reads as

hereunder:­

“GOVERNMENT ORDER NO. RD 106 LGP 88,
BENGALURU DATED 20.07.94

The Government after detailed examination of the
proposal issued order for transfer of total extent of
1,31,866­61 hectare area as given in the Annexure
enclosed to this Order to the Forest Department
for formation of land bank, subject to the following
conditions.

1. If the land is required for the public purpose
and for Government itself the Revenue
Department may take back this land from the
land bank.

2. The transferred lands have to be continued as
C and D category lands. No Notifications can
be issued stating that these lands are reserved
as Forest under the Forest Act.

3. At the time of release of Forest areas for mining
activities from the Forest Department. As a
compensation for that, for growing relief
Neduthopu the Government may release land
out of C and D Category lands from the land
bank and may make it available for the Forest
Department.

                                  By Order and in the name
                                  of   the   Governor     of
                                  Karnataka, Jitendra Singh
                                  Under Secretary to Govt.
                                  Revenue Department”


13. The relevant Rule and the Government Order will have to

be taken note of, to consider the contention of the learned

Page 11 of 19
Additional Advocate General that the right was not available

to the respondent to seek restoration since the Government

Order dated 20.07.1994 transferring the land to Forest

Department will amount to disposal of the forfeited land and

sub­rule (2) excludes the land “disposed of otherwise” from

being considered for restoration. In that background, a

perusal of the Government Order would indicate that it is not

in the nature of a Gazette notification invoking power under

the Karnataka Forest Act to notify the land as ‘reserved forest’

or such other forest area. On the other hand, the decision of

the Government is explicit to indicate that the land is to be

continued as ‘C’ and ‘D’ category lands which is a

classification of the revenue lands. In fact, the Government

Order specifies that no notification can be issued stating that

these lands are reserved as forest under the Forest Act. The

only intention appears to be to encourage afforestation and

safeguard the lands vested in the Government but should

continue to be available to the Government as revenue land.

This is clear from the preamble to the said order which

specifies that if the land is required for the public purpose

and for the Government itself, the Revenue Department may

Page 12 of 19
take back this land from the land bank. Therefore, as on the

date when the right accrued to the respondent to make an

application seeking restoration, the status of the property was

the same and the transfer was only from the Revenue

Department of the Government to the Forest Department of

the same Government i.e., from one arm to another. The

position therefore was that the Forest Department was made

the ‘custodian’ of the revenue land for a limited purpose.

Hence, as on the date when the respondent had made an

application it cannot be construed that the land in question

had been disposed of as contemplated under sub­rule (2) to

Rule 119 of Rules 1966.

14. Further, as noted, neither at the time when forfeiture

happened nor at the time when the property of respondent

was made over to the Forest Department by an executive

order, is there any proceeding to indicate that the respondent

or his predecessor was evicted and vacant possession was

handed over to the Forest Department. In that light, if the

possession had continued with the respondent, the

respondent was entitled for consideration of his application

for restoration. That apart, though much is made about the
Page 13 of 19
respondent having failed in his attempt to assail the

Government Order dated 20.07.1994 in W.P. No.10786/2006,

the same does not alter the position. The Government Order

as noted was a common order in respect of a larger extent of

land. There was no need to assail the Government Order

since the Forest Department was only made the ‘custodian’

and the property of the respondent was also included but it

remained to be forfeited land which was restorable subject to

meeting other requirements. The respondent was to establish

his right, in which event on consideration of his application

the property to the extent belonging to the respondent would

get restored in accordance with law, which will thereafter

cease to be a part of the Government Order and the Forest

Department can neither object to it nor claim possession to

the same. Instead of following the said process and awaiting

consideration of his application, the respondent had in fact

put the ‘cart before the horse’ in assailing it and failed, which

is inconsequential. The learned Single Judge in any event

had left it open for the respondent to work out his remedy

before the Deputy Commissioner, which has been availed.

Page 14 of 19

15. In the above backdrop, before adverting to the order

passed in the present round of litigation before the High

Court, keeping in view the fact that the reconsideration by the

Deputy Commissioner is predicated and was to be based on

the observations contained in the order dated 26.06.2012 in

W.P. No.36324/2009 (KLR­RES), the finding recorded by the

learned Single Judge in the said writ petition would be

relevant to be noted, which read as hereunder: ­

“11. In so far as second ground is concerned,
same is contrary to the very finding of the
authority which passed the impugned order
namely contrary to the finding recorded in
Annexure­E & K, whereunder, it has been
specifically held by the second respondent Deputy
Commissioner himself that land in question is in
possession of petitioner.

12. In view of the same, question that arises
would be whether petitioner is entitled for being
restored with the possession of land by virtue of
sub rule (2) of Rule 119. As rightly pointed out by
Mr. Patil, learned HCGP land in question has been
diverted by the Government under a Government
order bearing No.RD 106 LGP 88 dated
20.07.1994 to the Land Bank for being transferred
to various departments of the Government.
However, factually the land in question has
continued to be in possession of the petitioner as
consistently held by the respondents including the
2nd respondent authority which has passed the
impugned order. In fact, one of the basic criteria
for considering an application under sub­rule (2)
of Rule 119 is that applicant should have
continued to be in possession of the land, though
said land was forfeited to the Government for non

Page 15 of 19
payment of revenue. In other words possession
should not have been diverted. Thus, the criteria
prescribed in this regard is duly satisfied by the
petitioner even according to the respondent
authority themselves. However, to avoid any
technical plea being raised and obviously by way
of abundant caution, second respondent has
requested the Government by communication
dated 26.12.2000 and communication dated
23.08.2007 Annexure­E and J requesting the first
respondent Government to cancel/annul the
orders under which the land in question is said to
have been diverted i.e., Government order dated
20.07.1994. In the absence of any order having
been passed by the first respondent Government,
no order could have been passed by the second
respondent by considering the claim of the
petitioner. However, the Deputy Commissioner
was placed in a situation in which, he was facing a
direction issued by this court in Writ Petition
No.11334/2007 dated 24.7.2007 whereunder he
was directed to dispose of the application within
time frame and non compliance of said order
would have resulted in proceedings being initiated
against him and he had yet to receive reply from
the Government for his requests made under
letters dated 26.12.2000 and 23.08.2007 vide
Annexures E & J respectively. In this background
and left with no other option and in spite of there
being no orders having been passed by the first
respondent Government withdrawing or canceling
the order dated 20.7.1994 he was perforced to
pass the impugned order. The reasons assailed by
the second respondent to reject the applications
cannot be accepted by this court for the reasons
aforesaid. Hence, the impugned order cannot be
sustained.”

16. A perusal of the extracted portion of the order would

indicate that the learned Single Judge in the said writ petition

had taken note of the documents which indicated the

Page 16 of 19
possession over the property by the respondent. The said

order has attained finality. It is in the background of the said

sorder, reconsideration was required to be made by the

Deputy Commissioner. Though the said order of the learned

Single Judge had attained finality, the Forest Department in

disregard of the legal procedure and niceties involved,

erroneously intervened in the process and issued the

communication dated 16.09.2013, based on an Order dated

19.08.2013 passed by the Additional Chief Conservator of

Forests against the respondent which necessitated the filing

of the W.P. No.46003/2013 (KLR­RES). In the said writ

petition a detailed consideration was made by the learned

Single Judge by framing the relevant questions for

consideration. In the course of the order the learned Single

Judge took note of the notice issued by the Forest

Department and while doing so the learned Single Judge has

adverted to the report dated 11.10.2010 of the Tehsildar

disclosing the land to be in possession of the respondent and

the detailed consideration on that aspect made by the co­

ordinate Bench in the earlier writ petition. The action of the

Forest Department was accordingly held impermissible. It is

Page 17 of 19
in that light, the learned Single Judge had allowed the writ

petition and had quashed the impugned communications and

order, consequent to which direction was issued to restore the

ownership of land.

17. The Division Bench, in that background had taken into

consideration all these aspects of the matter. The nature of

transfer made to the land bank to be retained as ‘C’ and ‘D’

category land has been adverted to by the Division Bench and

it has been emphasised that the land was not notified as

‘reserve forest’. Be that as it may, even if at this point there is

sufficient tree growth over the lands which were transferred to

the Forest Department, the property to which the respondent

claims cannot be considered in today’s perspective. Though

the lands were made over to the Forest Department by an

executive order, the factual finding indicates that the

respondent continued to be in possession and had developed

coffee and areca plantation which in any event will require

tree growth. The right which accrued to the respondent to

seek restoration in the year 2000 is within about six years

from the date of Government Order during 1994. In such

Page 18 of 19
event, the Forest Department could not have intervened in the

present situation, unmindful of the earlier orders.

18. In the circumstance, the High Court has kept in view,

the legal position and has taken note that the possession of

the property remained with the respondent throughout, which

would satisfy the requirement to claim restoration under sub­

rule (2) to Rule 119 of Rules 1966. When a factual finding is

rendered to that effect, it will not arise for consideration in the

limited scope available to this Court in a proceeding of the

present nature.

19. In that view, the appeal being devoid of merit stands

dismissed with no order as to costs.

20. Pending application, if any, shall stand disposed of.

………………………….J.

(L. NAGESWARA RAO)

………………………….J.

(A.S. BOPANNA)

New Delhi,
May 17, 2022

Page 19 of 19



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