The State of Karnataka & Ors. vs G. Ramanarayana Joshi

HELD: 1.1 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 BJ, under whom the respondent is claiming right and title to the property. 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 would not be open for reappreciation in the limited scope under Article 136 of the Constitution, in a petition of the present nature. [Para 9][136-D-F]

1.2 By the amendment to sub-rule (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. [Para 11][137-E]

1.3 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 Department for formation of land bank through the Government Order dated 20.07.1994. [Para 12][137-F]

1.4 It was submitted by the appellant 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. 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. Thus, 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. [Para 13][138-D-H; 139-A-B]

1.5 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 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 would 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 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. [Para 14][139-C-G]

1.6 The 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 order, reconsideration was required to be made by the Deputy Commissioner. Though the said order of the 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 Single Judge by framing the relevant questions for consideration. In the course of the order the Single Judge took note of the notice issued by the Forest Department and while doing so the 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 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. [Para 16][141-C-G]

1.7 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 event, the Forest Department could not have intervened in the present situation, unmindful of the earlier orders. [Para 17][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 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 would not arise for consideration in the limited scope available to this Court in a proceeding of the instant nature. [Para 18][142-D]