Full Judgment Text
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)
J U D G M E N T
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.
On consideration, the applications came to be rejected by
5.
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.
In the background of the factual narration leading to the
6.
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.
The contention on behalf of the appellants is that the land
7.
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.”
By the amendment to subrule (2) by way of substitution
11.
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.
Having taken note of the same what is also to be taken
12.
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”
The relevant Rule and the Government Order will have to
13.
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.
Further, as noted, neither at the time when forfeiture
14.
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
In the above backdrop, before adverting to the order
15.
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
nd
2 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.
The Division Bench, in that background had taken into
17.
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