Case: The State of Karnataka &amp; Ors Vs. G. Ramanarayana Joshi

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. 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 sub-rule (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 sub-rule (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 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 (KLR-RES). 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 (KLR-RES). The learned Single Judge having taken note of all these aspects of the matter allowed the writ petition by the order dated 13.09.2017 as noted above. It is against the said order the appellants herein had preferred the intra-court Writ Appeal No.2319 of 2018 (KLR-RES), which was dismissed by the order dated 17.07.2009, assailed herein.

Reasoning:
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 Annexure-A 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 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 non-payment 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.13. The relevant Rule and the Government Order will have to be taken note of, to consider the contention of the learned 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 sub-rule (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 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 sub-rule (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 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.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 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 (KLR-RES). 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 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 todays 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 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.