THE STATE OF KARNATAKA & ORS. versus G. RAMANARAYANA JOSHI on 17 May 2022

SUPREME COURT REPORTS

[2022] 4 S.C.R.

THE STATE OF KARNATAKA & ORS.

A

v.

G. RAMANARAYANA JOSHI

(Civil Appeal No. 4117 of 2022)

BMAY 17, 2022

[L. NAGESWARA RAO AND A.S. BOPANNA, JJ.]

Karnataka Land Revenue Rule, 1966: r. 119(2) – Restorationof forfeited occupancy or alienated holding on payment of thearrear due – Property purchased in a public auction by theCrespondent’s ancestor in the year 1887 – Said property forfeited tothe State Government in the year 1892 for non-payment of landrevenue however, respondent remained in possession – In the year1994 by a Government order, certain land transferred to the ForestDepartment and the land in issue was a part of that land – In 2000,Dthe Government amended r.119(2) providing for the restoration ofthe forfeited property except those lands which are disposed ofotherwise by the government – Application u/r. 119(2) by therespondent – However, application not considered - Respondentthen filed a writ petition before the Single Judge which was allowedand was upheld by the Division Bench – On appeal, held:EGovernment order was not in nature of Gazette notification underKarnataka Forest Act to notify the land as reserved forest – It isclear from the preamble of the order that if the land is required forthe public purpose and for the government itself, the Revenuedepartment may take back this lands from the land bank – Therefore,Fas on the date when the right accrued to the respondent to make anapplication seeking restoration, the status of the property was thesame and the transfer was only from the Revenue Department ofthe Government to the Forest Department of the same Governmenti.e., from one arm to another – Forest department was made custodianof the revenue land for a limited purpose – Thus, as on the dateGwhen the respondent had made an application it cannot be construedthat the land had been disposed of as contemplated u/r. 119(2) –Respondent continued with the possession all the time and landwas never made over to the Forest Department or forfeited – Orderof the Single Judge of the High Court which attained finality refersHto the documents which indicate possession over the property by the respondent – Thus, the High Court took note that the possessionof the property remained with the respondent throughout wouldsatisfy the requirement to claim restoration u/r. 119(2).

Dismissing the appeal, the Court

HELD: 1.1 The document of the year 1919 at Annexure-Ato W.P. No.36324/2009 would disclose that the property originallywas a privately owned property in the name of BJ, under whomthe respondent is claiming right and title to the property. Theproperty which is said to have been purchased in the publicauction by the ancestors of the respondent was forfeited to theGovernment on 23.08.1892 for non-payment of arrears of landrevenue. One aspect of the matter is with regard to thepredecessor of the respondent having continued to be inpossession of the property and thereafter succeeded to by therespondent. On that aspect, the finding of fact recorded by thecompetent authority and noted by the High Court would berelevant since it would not be open for reappreciation in thelimited scope under Article 136 of the Constitution, in a petitionof the present nature. [Para 9][136-D-F]

1.2 By the amendment to sub-rule (2) by way of substitutionwith effect from 08.09.2000 the final effect is that an applicationwas required to be filed within one year from the date ofsubstitution, which was filed by the respondent on 30.09.2000and 05.10.2000, seeking restoration. [Para 11][137-E]

1.3 The property which is the subject matter of thisproceeding was also a part of the total extent of 2.58 lakh hectareswhich was transferred to the Forest Department for formation ofland bank through the Government Order dated 20.07.1994. [Para12][137-F]

1.4 It was submitted by the appellant that the right was notavailable to the respondent to seek restoration since theGovernment Order dated 20.07.1994 transferring the land toForest Department will amount to disposal of the forfeited landand sub-rule (2) excludes the land “disposed of otherwise” frombeing considered for restoration. A perusal of the GovernmentOrder would indicate that it is not in the nature of a Gazette A

BC

D

E

F

G

H

Anotification invoking power under the Karnataka Forest Act tonotify the land as ‘reserved forest’ or such other forest area. Onthe other hand, the decision of the Government is explicit toindicate that the land is to be continued as ‘C’ and ‘D’ categorylands which is a classification of the revenue lands. In fact, theGovernment Order specifies that no notification can be issuedBstating that these lands are reserved as forest under the ForestAct. The only intention appears to be to encourage afforestationand safeguard the lands vested in the Government but shouldcontinue to be available to the Government as revenue land. This is clear from the preamble to the said order which specifies thatCif the land is required for the public purpose and for theGovernment itself, the Revenue Department may take back thisland from the land bank. Therefore, as on the date when the rightaccrued to the respondent to make an application seekingrestoration, the status of the property was the same and thetransfer was only from the Revenue Department of theDGovernment to the Forest Department of the same Governmenti.e., from one arm to another. The position therefore was that theForest Department was made the ‘custodian’ of the revenue landfor a limited purpose. Thus, as on the date when the respondenthad made an application it cannot be construed that the land inEquestion had been disposed of as contemplated under sub-rule(2) to Rule 119 of Rules 1966. [Para 13][138-D-H; 139-A-B]

1.5 Neither at the time when forfeiture happened nor atthe time when the property of respondent was made over to theForest Department by an executive order, is there any proceedingFto indicate that the respondent or his predecessor was evictedand 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 applicationfor restoration. That apart, though much is made about therespondent having failed in his attempt to assail the GovernmentGOrder dated 20.07.1994 in W.P. No.10786/2006, the same doesnot alter the position. The Government Order was a commonorder in respect of a larger extent of land. There was no need toassail the Government Order since the Forest Department wasonly made the ‘custodian’ and the property of the respondentH

THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANAJOSHI

was also included but it remained to be forfeited land which wasrestorable subject to meeting other requirements. Therespondent was to establish his right, in which event onconsideration of his application the property to the extentbelonging to the respondent would get restored in accordancewith law, which would thereafter cease to be a part of theGovernment Order and the Forest Department can neither objectto it nor claim possession to the same. Instead of following thesaid process and awaiting consideration of his application, therespondent had in fact put the ‘cart before the horse’ in assailingit and failed, which is inconsequential. The Single Judge in anyevent had left it open for the respondent to work out his remedybefore the Deputy Commissioner, which has been availed. [Para14][139-C-G]

1.6 The Single Judge in the said writ petition had takennote of the documents which indicated the possession over theproperty by the respondent. The said order has attained finality.It is in the background of the said order, reconsideration wasrequired to be made by the Deputy Commissioner. Though thesaid order of the Single Judge had attained finality, the ForestDepartment in disregard of the legal procedure and nicetiesinvolved, erroneously intervened in the process and issued thecommunication dated 16.09.2013, based on an Order dated19.08.2013 passed by the Additional Chief Conservator of Forestsagainst the respondent which necessitated the filing of the W.P.No.46003/2013 (KLR-RES). In the said writ petition a detailedconsideration was made by the Single Judge by framing therelevant questions for consideration. In the course of the orderthe Single Judge took note of the notice issued by the ForestDepartment and while doing so the Single Judge has adverted tothe report dated 11.10.2010 of the Tehsildar disclosing the landto be in possession of the respondent and the detailedconsideration on that aspect made by the co-ordinate Bench inthe earlier writ petition. The action of the Forest Departmentwas accordingly held impermissible. It is in that light, the SingleJudge had allowed the writ petition and had quashed the impugnedcommunications and order, consequent to which direction wasissued to restore the ownership of land. [Para 16][141-C-G]

AB

C

DE

F

G

H

A1.7 The Division Bench, in that background had taken intoconsideration all these aspects of the matter. The nature oftransfer made to the land bank to be retained as ‘C’ and ‘D’category land has been adverted to by the Division Bench and ithas been emphasised that the land was not notified as ‘reserveforest’. Be that as it may, even if at this point there is sufficientBtree growth over the lands which were transferred to the ForestDepartment, the property to which the respondent claims cannotbe considered in today’s perspective. Though the lands weremade over to the Forest Department by an executive order, thefactual finding indicates that the respondent continued to be inCpossession and had developed coffee and areca plantation whichin any event will require tree growth. The right which accrued tothe respondent to seek restoration in the year 2000 is withinabout six years from the date of Government Order during 1994.In such event, the Forest Department could not have intervenedin the present situation, unmindful of the earlier orders. [ParaD17][141-G-H; 142-A-C]

1.8 In the circumstance, the High Court has kept in view,the legal position and note that the possession of the propertyremained with the respondent throughout, which would satisfythe requirement to claim restoration under sub-rule (2) to RuleE119 of Rules 1966. When a factual finding is rendered to thateffect, it would not arise for consideration in the limited scopeavailable to this Court in a proceeding of the instant nature. [Para18][142-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4117 ofF2022.

From the Judgment and Order dated 17.07.2019 of the High Courtof Karnataka at Bengaluru in Writ Appeal No.2319 of 2018 (KLR-RES)and Order dated 13.09.2017 in Writ Petition No.46003 of 2013 (KLR-RES).G

Nikhil Goel, AAG, V. N. Raghupathy, Adv. for the Appellants.

Raghavendra S. Srivatsa, Manmohan P. N., Venkita SubramanianT. R., Likhi Chand Bonsle, Ms. Komal Mundhra, Advs. for theRespondent.

H

THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANAJOSHI

The Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. Leave granted.

2. This appeal is directed against the judgment dated 17.07.2019passed by the High Court of Karnataka at Bengaluru in Writ AppealNo.2319 of 2018 (KLR-RES). Through the said judgment, the DivisionBench has dismissed the appeal filed by the appellants herein. The intra-court appeal before the Division Bench was filed by the appellants,assailing the order dated 13.09.2017 passed by the learned Single Judgeof that Court, in W.P. No.46003/2013 (KLR-RES). The learned SingleJudge had allowed the writ petition filed by the respondent herein andhad quashed the communication that was impugned at Annexure M andN to the writ petition. Consequently, direction was issued to the appellantsherein to withdraw the land belonging to the respondent which wastransferred to the Forest Department and restore the same to therespondent in terms of sub-rule (2) to Rule 119 of the Karnataka LandRevenue Rules, 1966 (for short, ‘Rules 1966’).

3. The brief facts necessary to be noted for the disposal of thisappeal are; the respondent claims to have succeeded to the propertybearing Survey No.170 measuring 45.01 acres situated in Horanaduvillage, Kasaba Hobli, Mudigere Taluk, Chikmagaluru District. The saidproperty is claimed to have been purchased by his ancestors, namely,Bhima Jois, son of Venkatasubba Jois of Horanadu Village in a publicauction held on 10.12.1887. The ancestors of the respondent andthereafter, the respondent who succeeded to the property, claim to havecontinued in uninterrupted possession of the said property. However, theland revenue having not been paid, the property was forfeited to theGovernment during 1892. Though that was the position, the propertyremained in the possession and enjoyment of the family even after suchforfeiture and they continued to enjoy it. To that effect, the Khetwarextract for Survey No.170 (Old Survey No.132) of the year 1919 isproduced in the writ petition and relied upon by the respondent.

4. When this was the position, through notification no. RD 50LGP 96 dated 07.09.2000 the Government amended sub-rule (2) to Rule119 of the Rules 1966 providing for restoration of the forfeited property,if such application is made during a period of not more than one yearfrom the date of the commencement of the amendment i.e. within one A

BC

DEF

G

H

Ayear from 08.04.2000. The said benefit was granted notwithstanding theexpiry of the period allowed under sub-rule (1) to that Rule. Therespondent taking benefit of the said amendment filed the applicationson 30.09.2000 and 05.10.2000 seeking for restoration, which were wellwithin the time prescribed. When the said applications had not receivedconsideration, the respondent was before the High Court in W.P. No.11334/B2007 seeking for a direction to consider the applications. The learnedSingle Judge disposed of the writ petition on 24.07.2007 with a directionto the Deputy Commissioner to dispose of the applications filed by therespondent.

5. On consideration, the applications came to be rejected by orderCdated 27.11.2009. The respondent claiming to be aggrieved by suchrejection, filed another writ petition in W.P. No.36324/2009 (KLR-RES).The learned Single Judge allowed the writ petition on 26.06.2012 quashedthe order dated 27.11.2009 impugned therein and directed the DeputyCommissioner to consider the applications afresh on merits, by takinginto consideration reports of the Assistant Commissioner and Tehsildar,Das also the observations contained in the order passed by the learnedSingle Judge on 26.06.2012. However, contrary to the directions issued,the claim of the respondent was negatived by the order dated 19.08.2013passed by the Additional Chief Conservator of Forest. The ForestDepartment also issued notice dated 16.09.2013 based on the said order,Ewhich were assailed in W.P. No.46003/2013 (KLR-RES). The learnedSingle Judge having taken note of all these aspects of the matter allowedthe writ petition by the order dated 13.09.2017 as noted above. It isagainst the said order the appellants herein had preferred the intra-courtWrit Appeal No.2319 of 2018 (KLR-RES), which was dismissed by theorder dated 17.07.2009, assailed herein.F

6. In the background of the factual narration leading to the presentappeal, we have heard Mr. Nikhil Goel, AAG with Mr. V.N. Raghupathyfor the appellants, Mr. Raghavendra S. Srivatsa with Mr. P.N. Manmohanfor the respondents and perused the appeal papers.

7. The contention on behalf of the appellants is that the land wasGforfeited as far back as in the year 1892 and as such the application filedunder Rule 119 of the Rules 1966 would not be maintainable. It iscontended that even assuming the amended sub-rule is held applicablethe same specifies that the application would be entertained only in respectof the land which has not been disposed of otherwise. It is contendedHthat 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 landbank, which included the extent of land that is in issue, in this proceeding.It is contended that the land was ‘disposed of’ and was therefore notavailable to be considered for restoration under sub-rule (2) to Rule 119of Rules 1966. It is the appellant’s case that the G.O. dated 20.07.1994whereby the land was transferred to the Forest Department had in factbeen assailed by the respondent herein in W.P. No.10786 of 2006 (KLR-RES) before the High Court of Karnataka but the learned Single Judgedisposed of the writ petition on 08.08.2006 without interfering with thesaid notification. In that circumstance, the application filed for restorationin respect of land which has already been transferred to Forest Departmentwas not sustainable and the competent authority had rightly dismissedthe application which ought not to have been interfered with by the HighCourt. Though in the present round of proceedings the benefit was grantedby the learned Single Judge in W.P. No.46003/2013, the issue essentiallywas considered in the earlier writ petition in W.P. No.36324/2009 whereinreconsideration was directed. The learned Additional Advocate Generalwhile referring to the order passed therein would seek to contend thatthe very observation contained in the said order about the predicamentfor the Deputy Commissioner due to the order dated 20.07.1994 in W.P.No.11334/2017 should have tilted the consideration in favour of theappellant. In that light, it is contended that the lands which were forfeitedto the government and being transferred to the Forest Department werenot in the possession of the respondent.

8. The learned counsel for the respondent while seeking to sustainthe order passed by the Division Bench has also made reference to theorder passed by the learned Single Judge in the present round of theproceedings, 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 waspurchased by the ancestors of the respondent in an auction. Hence ason the date of forfeiture, the property was a privately owned land andthe forfeiture was due to non-payment of land revenue arrears. Thoughthe forfeiture had taken place by operation of law, factually the ancestorshad continued to be in possession and the appellant has succeeded to thesame. The property in question is being cultivated as a plantation. Thehouse of the respondent and a temple is also situated therein.Notwithstanding the Government Order dated 20.07.1994 the respondenthad continued to remain in possession and cultivation of the property.

AB

C

D

E

F

G

H

AThere is no other contrary material available on record to dispute theclaim of the respondent. When this was the position, a right becameavailable to the respondent by amendment of sub-rule (2) to Rule 119 ofRules 1966. The benefit of the amendment made on 07.09.2000, witheffect from 08.09.2000 was availed by the respondent and an applicationfor restoration was made on 30.09.2000 and 05.10.2000 within the timeBframe provided under the sub-rule. It is contended that the High Courthaving taken into consideration all these aspects of the matter and alsothe fact that the reports submitted by the Tehsildar and the AssistantCommissioner which established the position that the respondent continuedto be in possession, has granted the relief, which does not call forCinterference.

9. In the light of the contentions, keeping in view the backgroundreferred to by the respondent herein, the document of the year 1919 atAnnexure-A to W.P. No.36324/2009 would disclose that the propertyoriginally was a privately owned property in the name of Bhima Jois,Dunder whom the respondent is claiming right and title to the property.Though that is the position, the indisputable aspect is that the propertywhich is said to have been purchased in the public auction by the ancestorsof the respondent was forfeited to the Government on 23.08.1892 fornon-payment of arrears of land revenue. One aspect of the matter iswith regard to the predecessor of the respondent having continued to beEin possession of the property and thereafter succeeded to by therespondent. On that aspect, the finding of fact recorded by the competentauthority and noted by the High Court would be relevant since it will notbe open for reappreciation in the limited scope under Article 136 of theConstitution, in a petition of the present nature. The other aspect of theFmatter is regarding the right available to the respondent to seek restorationand in that regard whether such right subsisted in favour of therespondent.

10. The right to seek restoration is traced to sub-rule (2) of Rule119 of Rules 1966 which read as hereunder:-G“119. Restoration of forfeited occupancy or alienated-holding on payment of the arrear due.

(1) The Deputy Commissioner may restore any forfeitedoccupancy or alienated holding which has been purchased onaccount of the Government and which has not been disposed ofH

THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANAJOSHI [A. S. BOPANNA, J.]

otherwise within three years from the date of forfeiture on paymentof the arrear in respect of which the forfeiture was incurredtogether with the amount of land revenue in respect of the holdingfrom the date of forfeiture to the date of restoration and theexpenses incurred so far in the recovery and further proceedingsas may be forced by the Commissioner.

(2) During a period of not more than one year from the date ofcommencement of Karnataka Land Revenue (Amendment) Rules,2001 the Deputy Commissioner may, notwithstanding the expiryof the period specified in sub-rule (1), restore any forfeitedoccupancy or alienated holding which has been purchased onaccount of the Government dues and which has not been disposedof otherwise, to the person who has not been dispossessed ofsuch occupancy or holding immediately before suchcommencement, on payment of the arrears in respect of whichthe forfeiture was incurred together with the amount of landrevenue in respect of the holding from the date of forfeiture to thedate of restoration and the expenses incurred so far in the recoveryand further proceedings as may be fixed by the DeputyCommissioner.”

11. By the amendment to sub-rule (2) by way of substitution witheffect from 08.09.2000 the final effect is that an application was requiredto be filed within one year from the date of substitution, which was filedby 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 intoconsideration is that the property which is the subject matter of thisproceeding was also a part of the total extent of 2.58 lakh hectareswhich was transferred to the Forest Department for formation of landbank through the Government Order dated 20.07.1994. The GovernmentOrder reads as hereunder:- “GOVERNMENT ORDER NO. RD 106 LGP 88, BENGALURU DATED 20.07.94

The Government after detailed examination of the proposal issuedorder for transfer of total extent of 1,31,866-61 hectare area asgiven in the Annexure enclosed to this Order to the ForestDepartment for formation of land bank, subject to the followingconditions.

A

B

C

D

E

F

G

H

A1. If the land is required for the public purpose and forGovernment itself the Revenue Department may take backthis land from the land bank.

2. The transferred lands have to be continued as C and Dcategory lands. No Notifications can be issued stating thatBthese lands are reserved as Forest under the Forest Act.

3. At the time of release of Forest areas for mining activitiesfrom the Forest Department. As a compensation for that, forgrowing relief Neduthopu the Government may release landout of C and D Category lands from the land bank and mayCmake it available for the Forest Department.

By Order and in the name ofthe Governor of Karnataka,Jitendra Singh Under Secretaryto Govt. RevenueDepartment”

D

13. The relevant Rule and the Government Order will have to betaken note of, to consider the contention of the learned AdditionalAdvocate General that the right was not available to the respondent toseek restoration since the Government Order dated 20.07.1994Etransferring the land to Forest Department will amount to disposal of theforfeited land and sub-rule (2) excludes the land “disposed of otherwise”from being considered for restoration. In that background, a perusal ofthe Government Order would indicate that it is not in the nature of aGazette notification invoking power under the Karnataka Forest Act tonotify the land as ‘reserved forest’ or such other forest area. On theFother hand, the decision of the Government is explicit to indicate that theland is to be continued as ‘C’ and ‘D’ category lands which is aclassification of the revenue lands. In fact, the Government Orderspecifies that no notification can be issued stating that these lands arereserved as forest under the Forest Act. The only intention appears toGbe to encourage afforestation and safeguard the lands vested in theGovernment but should continue to be available to the Government asrevenue land. This is clear from the preamble to the said order whichspecifies that if the land is required for the public purpose and for theGovernment itself, the Revenue Department may take back this landfrom the land bank. Therefore, as on the date when the right accrued toHthe respondent to make an application seeking restoration, the status of the property was the same and the transfer was only from the RevenueDepartment of the Government to the Forest Department of the sameGovernment i.e., from one arm to another. The position therefore wasthat the Forest Department was made the ‘custodian’ of the revenueland for a limited purpose. Hence, as on the date when the respondenthad made an application it cannot be construed that the land in questionhad been disposed of as contemplated under sub-rule (2) to Rule 119 ofRules 1966.

14. Further, as noted, neither at the time when forfeiture happenednor at the time when the property of respondent was made over to theForest Department by an executive order, is there any proceeding toindicate that the respondent or his predecessor was evicted and vacantpossession was handed over to the Forest Department. In that light, ifthe possession had continued with the respondent, the respondent wasentitled for consideration of his application for restoration. That apart,though much is made about the respondent having failed in his attemptto assail the Government Order dated 20.07.1994 in W.P. No.10786/2006, the same does not alter the position. The Government Order asnoted was a common order in respect of a larger extent of land. Therewas no need to assail the Government Order since the Forest Departmentwas only made the ‘custodian’ and the property of the respondent wasalso included but it remained to be forfeited land which was restorablesubject to meeting other requirements. The respondent was to establishhis right, in which event on consideration of his application the propertyto the extent belonging to the respondent would get restored in accordancewith law, which will thereafter cease to be a part of the GovernmentOrder and the Forest Department can neither object to it nor claimpossession to the same. Instead of following the said process and awaitingconsideration of his application, the respondent had in fact put the ‘cartbefore the horse’ in assailing it and failed, which is inconsequential. Thelearned Single Judge in any event had left it open for the respondent towork out his remedy before the Deputy Commissioner, which has beenavailed.

15. In the above backdrop, before adverting to the order passedin the present round of litigation before the High Court, keeping in viewthe fact that the reconsideration by the Deputy Commissioner is predicatedand was to be based on the observations contained in the order dated26.06.2012 in W.P. No.36324/2009 (KLR-RES), the finding recorded A

B

C

D

E

F

G

H

Aby the learned Single Judge in the said writ petition would be relevant tobe noted, which read as hereunder: - “11. In so far as second ground is concerned, same is contrary tothe very finding of the authority which passed the impugned ordernamely contrary to the finding recorded in Annexure-E & K,whereunder, it has been specifically held by the second respondentDeputy Commissioner himself that land in question is in possessionof petitioner.

B

12. In view of the same, question that arises would be whetherpetitioner is entitled for being restored with the possession of landby virtue of sub rule (2) of Rule 119. As rightly pointed out by Mr.Patil, learned HCGP land in question has been diverted by theGovernment under a Government order bearing No.RD 106 LGP88 dated 20.07.1994 to the Land Bank for being transferred tovarious departments of the Government. However, factually theland in question has continued to be in possession of the petitioneras consistently held by the respondents including the 2[nd] respondentauthority which has passed the impugned order. In fact, one ofthe basic criteria for considering an application under sub-rule (2)of Rule 119 is that applicant should have continued to be inpossession of the land, though said land was forfeited to theGovernment for non payment of revenue. In other wordspossession should not have been diverted. Thus, the criteriaprescribed in this regard is duly satisfied by the petitioner evenaccording to the respondent authority themselves. However, toavoid any technical plea being raised and obviously by way ofabundant caution, second respondent has requested theGovernment by communication dated 26.12.2000 andcommunication dated 23.08.2007 Annexure-E and J requestingthe first respondent Government to cancel/annul the orders underwhich the land in question is said to have been diverted i.e.,Government order dated 20.07.1994. In the absence of any orderhaving been passed by the first respondent Government, no ordercould have been passed by the second respondent by consideringthe claim of the petitioner. However, the Deputy Commissionerwas placed in a situation in which, he was facing a direction issuedby this court in Writ Petition No.11334/2007 dated 24.7.2007whereunder he was directed to dispose of the application within C

D

E

F

G

H

THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANAJOSHI [A. S. BOPANNA, J.]

time frame and non compliance of said order would have resultedin proceedings being initiated against him and he had yet to receivereply from the Government for his requests made under lettersdated 26.12.2000 and 23.08.2007 vide Annexures E & Jrespectively. In this background and left with no other option andin spite of there being no orders having been passed by the firstrespondent Government withdrawing or canceling the order dated20.7.1994 he was perforced to pass the impugned order. Thereasons assailed by the second respondent to reject the applicationscannot 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 indicatethat the learned Single Judge in the said writ petition had taken note ofthe documents which indicated the possession over the property by therespondent. The said order has attained finality. It is in the backgroundof the said sorder, reconsideration was required to be made by the DeputyCommissioner. Though the said order of the learned Single Judge hadattained finality, the Forest Department in disregard of the legal procedureand niceties involved, erroneously intervened in the process and issuedthe communication dated 16.09.2013, based on an Order dated 19.08.2013passed by the Additional Chief Conservator of Forests against therespondent which necessitated the filing of the W.P. No.46003/2013(KLR-RES). In the said writ petition a detailed consideration was madeby the learned Single Judge by framing the relevant questions forconsideration. In the course of the order the learned Single Judge tooknote of the notice issued by the Forest Department and while doing sothe learned Single Judge has adverted to the report dated 11.10.2010 ofthe Tehsildar disclosing the land to be in possession of the respondentand the detailed consideration on that aspect made by the co-ordinateBench in the earlier writ petition. The action of the Forest Departmentwas accordingly held impermissible. It is in that light, the learned SingleJudge had allowed the writ petition and had quashed the impugnedcommunications and order, consequent to which direction was issued torestore the ownership of land.

17. The Division Bench, in that background had taken intoconsideration all these aspects of the matter. The nature of transfermade to the land bank to be retained as ‘C’ and ‘D’ category land hasbeen adverted to by the Division Bench and it has been emphasised that AB

C

D

E

F

G

H

Athe land was not notified as ‘reserve forest’. Be that as it may, even if atthis point there is sufficient tree growth over the lands which weretransferred to the Forest Department, the property to which the respondentclaims cannot be considered in today’s perspective. Though the landswere made over to the Forest Department by an executive order, thefactual finding indicates that the respondent continued to be in possessionBand had developed coffee and areca plantation which in any event willrequire tree growth. The right which accrued to the respondent to seekrestoration in the year 2000 is within about six years from the date ofGovernment Order during 1994. In such event, the Forest Departmentcould not have intervened in the present situation, unmindful of the earlierCorders.

18. In the circumstance, the High Court has kept in view, the legalposition and has taken note that the possession of the property remainedwith the respondent throughout, which would satisfy the requirement toclaim restoration under sub-rule (2) to Rule 119 of Rules 1966. When aDfactual finding is rendered to that effect, it will not arise for considerationin the limited scope available to this Court in a proceeding of the presentnature.

19. In that view, the appeal being devoid of merit stands dismissedwith no order as to costs.

E20. Pending application, if any, shall stand disposed of.

Nidhi Jain

(Assisted by : Shashwat Jain, LCRA)

Appeal dismissed.

F

G

H