THE STATE OF KARNATAKA & ORS.versusG. RAMANARAYANA JOSHI

128                      [2022]REPORTS
               SUPREME COURT    4 S.C.R. 128              [2022] 4 S.C.R.


A                  THE STATE OF KARNATAKA & ORS.
                                       v.
                        G. RAMANARAYANA JOSHI
                        (Civil Appeal No. 4117 of 2022)
B                                MAY 17, 2022
            [L. NAGESWARA RAO AND A.S. BOPANNA, JJ.]
              Karnataka Land Revenue Rule, 1966: r. 119(2) – Restoration
      of forfeited occupancy or alienated holding on payment of the
      arrear due – Property purchased in a public auction by the
C
      respondent’s ancestor in the year 1887 – Said property forfeited to
      the State Government in the year 1892 for non-payment of land
      revenue however, respondent remained in possession – In the year
      1994 by a Government order, certain land transferred to the Forest
      Department and the land in issue was a part of that land – In 2000,
D     the Government amended r.119(2) providing for the restoration of
      the forfeited property except those lands which are disposed of
      otherwise by the government – Application u/r. 119(2) by the
      respondent – However, application not considered - Respondent
      then filed a writ petition before the Single Judge which was allowed
      and was upheld by the Division Bench – On appeal, held:
E
      Government order was not in nature of Gazette notification under
      Karnataka Forest Act to notify the land as reserved forest – It is
      clear from the preamble of the order that if the land is required for
      the public purpose and for the government itself, the Revenue
      department may take back this lands from the land bank – Therefore,
F     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 – Forest department was made custodian
      of the revenue land for a limited purpose – Thus, as on the date
G
      when the respondent had made an application it cannot be construed
      that the land had been disposed of as contemplated u/r. 119(2) –
      Respondent continued with the possession all the time and land
      was never made over to the Forest Department or forfeited – Order
      of the Single Judge of the High Court which attained finality refers
H     to the documents which indicate possession over the property by
                                        128
THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANA                       129
                     JOSHI

the respondent – Thus, the High Court took note that the possession    A
of the property remained with the respondent throughout would
satisfy 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-A
to W.P. No.36324/2009 would disclose that the property originally      B
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            C
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          D
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              E
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        F
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             G
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
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130           SUPREME COURT REPORTS                      [2022] 4 S.C.R.


A     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
B
      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
C     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
D
      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
E     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
F     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
G     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
H
THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANA                      131
                     JOSHI

was also included but it remained to be forfeited land which was      A
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
                                                                      B
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      C
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.     D
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               E
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      F
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        G
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]
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132             SUPREME COURT REPORTS                       [2022] 4 S.C.R.


A           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
B
      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
C     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
D
      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
E     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]
              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4117 of
F     2022.
            From the Judgment and Order dated 17.07.2019 of the High Court
      of 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 Subramanian
      T. R., Likhi Chand Bonsle, Ms. Komal Mundhra, Advs. for the
      Respondent.
H
THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANA                               133
                     JOSHI

      The Judgment of the Court was delivered by                               A
      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              B
No.2319 of 2018 (KLR-RES). Through the said judgment, the Division
Bench 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 Judge
of that Court, in W.P. No.46003/2013 (KLR-RES). The learned Single
Judge had allowed the writ petition filed by the respondent herein and         C
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
respondent in terms of sub-rule (2) to Rule 119 of the Karnataka Land          D
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         E
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           F
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.               G
       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
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134             SUPREME COURT REPORTS                           [2022] 4 S.C.R.


A     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
      respondent 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/
B     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
C     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,
D
      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,
E     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.
F
             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
G
      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 sub-rule 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
H     that in the instant case the Government of Karnataka by order dated
THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANA                                 135
              JOSHI [A. S. BOPANNA, J.]

20.07.1994 had transferred an extent of 2.58 lakh hectares of ‘C’ and            A
‘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 ‘disposed of’ and was therefore not
available to be considered for restoration under sub-rule (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            B
been assailed by the respondent herein in W.P. No.10786 of 2006 (KLR-
RES) 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       C
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            D
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.
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            E
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,   F
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 non-payment of land revenue arrears. Though
the forfeiture had taken place by operation of law, factually the ancestors      G
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 cultivation of the property.
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136             SUPREME COURT REPORTS                            [2022] 4 S.C.R.


A     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 sub-rule (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
B
      frame provided under the sub-rule. 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
C     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
      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,
D     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
E     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
F     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 sub-rule (2) of Rule
      119 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 forfeited
            occupancy or alienated holding which has been purchased on
            account of the Government and which has not been disposed of
H
THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANA                              137
              JOSHI [A. S. BOPANNA, J.]

      otherwise within three years from the date of forfeiture on payment     A
      of the arrear 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 forced by the Commissioner.
                                                                              B
      (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 sub-rule (1), restore any forfeited
      occupancy or alienated holding which has been purchased on
      account of the Government dues and which has not been disposed          C
      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    D
      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 sub-rule (2) by way of substitution with
effect from 08.09.2000 the final effect is that an application was required   E
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          F
which was transferred to the Forest 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                                       G
      The Government after detailed examination of the proposal issued
      order for transfer of total extent of 1,31,866-61 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.
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A           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
B              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
C              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
D                                                Department”
             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
E     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
F     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
G     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
H     the respondent to make an application seeking restoration, the status of
THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANA                              139
              JOSHI [A. S. BOPANNA, J.]

the property was the same and the transfer was only from the Revenue          A
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
                                                                              B
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        C
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/             D
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        E
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    F
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.
                                                                              G
       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 (KLR-RES), the finding recorded
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140            SUPREME COURT REPORTS                           [2022] 4 S.C.R.


A     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 Annexure-E & K,
B           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
C           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
D           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 sub-rule (2)
            of Rule 119 is that applicant should have continued to be in
            possession of the land, though said land was forfeited to the
E           Government for non 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
F           Government by communication dated 26.12.2000 and
            communication dated 23.08.2007 Annexure-E 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
G           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
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THE STATE OF KARNATAKA & ORS. v. G. RAMANARAYANA                               141
              JOSHI [A. S. BOPANNA, J.]

      time frame and non compliance of said order would have resulted          A
      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
                                                                               B
      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     C
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            D
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         E
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        F
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.                                                 G

      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
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142              SUPREME COURT REPORTS                            [2022] 4 S.C.R.


A     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
B
      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
C     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
D     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.
E            20. Pending application, if any, shall stand disposed of.

      Nidhi Jain                                                     Appeal dismissed.
      (Assisted by : Shashwat Jain, LCRA)


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