IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT APPEAL NO.2319 OF 2018(KLR-RES) BETWEEN 1. THE STATE OF KARNATAKA BY ITS SECRETARY, REVENUE DEPARTMENT, M. S. BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
2. THE DEPUTY COMMISSIONER, CHICKMAGALUR DISTRICT, CHICKMAGALUR.
3. THE ASSISTANT COMMISSIONER, CHICKMAGALUR SUB DIVISION, CHICKMAGALUR.
4. THE TAHSILDAR, MUDIGERE TALUK, CHICKMAGALUR DISTRICT.
5. THE RANGE FOREST OFFICER, KALASA DIVISION, KALASA.
6. THE CHIEF CONSERVATOR OF FOREST, ARANYA BHAVAN, MALLESHWARAM, BENGALURU-560 003.
(BY SRI. S. S. MAHENDRA, AGA) ... APPELLANTS AND SRI. G. RAMANARAYANA JOSHI, S/O D. V. GAJENDRA PRASANNA JOSHI, AGED ABOUT 50 YEARS, R/AT GANESH KRUPA, BENAK ESTATE, HORANADU -577 181, MUDIGERE TALUK, CHICKMAGALUR DISTRICT.
... RESPONDENT (BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI. MANMOHAN P. N, ADVOCATE) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE ORDER DATED 13/9/2017 IN WP 46003/2013 PASSED BY THE LEARNED SINGLE JUDGE.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, DEVDAS J, DELIVERED THE FOLLOWING:
JUDGMENT The respondent herein filed the instant writ petition seeking quashment of the Government Order dated 20.07.1994, whereby an extent of 2.58 lakh hectares of C and D category lands including his lands in Sy.No.170, measuring 45 acres 01 guntas, situated at Horanadu village, Kasaba Hobli, Mudigere taluk, Chikkamagaluru District was transferred to the Forest Department for creating land bank and a subsequent order dated 19.08.2013, issued by the Chief Conservator of Forest directing eviction of the respondent herein from the land in question.
2. The case, in a nutshell is that the respondent’s ancestors owned the land in question, right from 10.12.1887, having purchased the land in a public auction. It is contended that the land was forfeited for non-payment of tax, in the year 1892. However, it is contended that the Khetwar extract of the year 1919 shows the name of late Sri.Bhima Jois and the land continued to be in possession of the respondent’s ancestors. By a notification dated 07.06.1993, the State Government transferred 2.58 lakh hectares of C and D category lands, including the land in question to the Forest Department for establishing land bank, laced with certain conditions.
3. The State Government amended Rule 119 of the Karnataka Land Revenue Rules,1976 (for short ‘the Rules’) providing for restoration of the forfeited lands to the land owners. In the light of the said provision, the respondent submitted applications on 30.09.2000 and 05.10.2000, seeking restoration of the land. The Tahsildar, Mudigere conducted spot inspection and issued a communication dated 11.10.2000 informing the Deputy commissioner, Chikkamagalur that the respondent was in possession of the land; that the land had been purchased by his ancestors by public action, way back on 23.08.1892 and the land was transferred for creating land bank. The Deputy Commissioner recommended to the State Government that the land may be restored to the respondent. Nevertheless, since the lands were not restored, the respondent approached this Court in W.P.No.11334/2007, seeking a direction to the Deputy Commissioner to consider his applications.
4. By order dated 24.07.2007, the writ petition was disposed of with a direction to the Deputy Commissioner to consider the applications and pass orders. The Deputy Commissioner once again communicated to the State Government on 20.08.2007, that the land may be restored in favour of the respondent. It was also stated in the communication dated 20.08.2007, that the respondent was growing coffee and arecanut in the land and he possessed license from the Inspector of Central Excise and Customs, Kalasa, and that his house was situated in a part of the land, apart from a Sanskrit School and a temple situated in the land.
5. However, by a subsequent order dated 27.11.2009, the Deputy Commissioner rejected the applications filed by the respondent on the ground that he failed to show his continuous possession of the property. The respondent once again approached this Court in W.P.No.36324/2009. The said writ petition was allowed on 26.06.2012, recording a finding that even according to the Deputy Commissioner the respondent herein had satisfied the parameters in sub- rule (2) of Rule 119 and that the land was in his possession. A writ ensued to the State Government to bestow its attention to the recommendations of the Deputy Commissioner and pass orders expeditiously.
6. However, in defiance of the directions issued by the learned single Judge, the Range Forest Officer, Kalasa Division, issued a communication dated 16.09.2013, calling upon the respondent herein to vacate the land within 15 days as the Chief Conservator of Forest has passed an order dated 19.08.2013, instructing the Range Forest Officer to evict the respondent from the land in question. It is in this background that the writ petition was preferred by the respondent herein. The petition was allowed with a specific direction to the appellants herein to withdraw the land of the respondent transferred as land bank with the Forest department and restore the same to the respondent so as to enable him to exercise all rights as provided under sub-rule (2)of Rule 119 of the Rules.
7. Sri.S.S.Mahendra, learned Additional Government Advocate, appearing for the appellants, State of Karnataka, authorities of the Revenue Department and the Forest Department, would submit that the title of the respondent to the land in question is seriously disputed. The possession of the respondent is disputed. In that regard, attention of this Court is drawn to the application in Form No.50, at Annexure- R6, wherein the respondent has stated that he is in unauthorized possession of the land in question for a period of two years. In the light of the said statement made by the respondent herein, it is vehemently contended by the learned Additional Government Advocate that the respondent admits that he was divested of the land and he came into unauthorized possession only before two years from the date of the application, which was made in the year 2000. The learned Additional Government Advocate makes a faint argument that in view of the Official Memorandum dated 07.06.1993, the entire extent of 2.58 lakh hectares including the land in question are deemed to be ‘forest lands’.
8. Sri. Ashok Haranahalli, learned Senior Counsel, appearing for the respondent would submit that the appellant authorities are estopped from contending that the respondent was divested of the lands and that he was not in possession. Attention of this Court was once again drawn to the communications dated 11.10.2000, made by the Tahsildar to the Deputy Commissioner; 26.12.2000, made by the Deputy Commissioner to the State Government; 20.08.2007, made by the Deputy Commissioner to the State Government and license bearing No.133/1991, issued on 13.11.1991, by the department of Central Excise and Customs, Kalasa, for Coffee curing activities. Attention of this Court is also drawn to the factual findings in the said communications that the respondent was residing in a house situated within the land, he had constructed a school and a temple on the land. The learned Senior Counsel submits that the claims of the respondent herein have been upheld by this Court on three occasions, while the appellant authorities have been harassing the respondent and driving him from pillar to post, denying a legitimate claim.
9. We have heard Sri.S.S.Mahendra, learned Additional Government Advocate for the appellants and Sri. Ashok Haranahalli, learned Senior Counsel for the respondent and perused the writ appeal papers.
10. The Government Order dated 20.07.1994, reads as follows:
GOVERNMENT ORDER NO.RD 106 LGP 88, BANGALORE, DATED: 20.07.1994 The Government after detailed examination of the proposal issued order for transfer of totally 1,31,866-61 hectare area 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 the Revenue Department may take back this land from the land back.
(2) The transferred lands shall continue to be categorized as C and D category lands. These lands shall not be notified as reserved forest under the Forest Act.
(3) Whenever, forest lands are released by the Forest Department for mining activities, as compensatory measure whenever, the Forest Department is required to ensure afforestation, C and D class lands may be released in favour of Forest Department.
By order and in the name of The Governor of Karnataka Under Secretary to Government, Revenue Department 11. Condition No.2, as noticed above, precludes issuance of notification under the Forest Act, for the purpose of notifying any portion of the 2.59 lakh hectares of land as ‘reserved forest’. Therefore, the contention of the learned Additional Government Advocate that the land in question for being part of the 2.59 lakh hectares under the Government Order dated 20.07.1994, is a deemed forest land, deserves to be rejected as a specious plea.
12. The amended sub-rule (1) of Rule 119 of the Rules, empowers the Deputy Commissioner to restore any forfeited occupancy or alienated holding, which has not been disposed of otherwise within three years from the date of forfeiture on payment of the arrears along with other expenses incurred thereto. Sub-rule (2) provides that during a period of not more than 21 months from 07.12.2012 to 06.09.2014, the Deputy Commissioner may, notwithstanding the expiry of the period specified in sub-rule(1), restore any forfeited occupancy or alienated holding which has not been disposed of otherwise, to the person who has not been disposed of such occupancy or holding immediately before such commencement.
13. In the order dated 26.06.2012, in W.P.No.36324/2009, a learned single Judge of this Court has given a categorical finding that the claim of the petitioner would squarely fall within the provision of sub-rule (2) of Rule 119, coupled with the factual findings given by the revenue authorities. Having considered the very same questions, the learned single Judge had held that inspite of such overwhelming evidence available on record and the Deputy Commissioner himself having held that land in question is in possession of the respondent herein and the applications made by the respondents squarely falls within the parameters laid down in sub-rule (2) of Rule 119, set aside the order dated 27.11.2009, issued by the Deputy Commissioner and directed the Deputy Commissioner to reconsider the applications of the respondent herein.
14. What is noticeable is that inspite of specific directions which were issued to the Deputy Commissioner to reconsider the applications of the respondents herein and the Deputy Commissioner communicating the said order to the State Government and requesting permission to pass an order in favour of the respondent herein, the State Government remains inert. The cause of action for the present writ petition is a subsequent order passed by the Chief Conservator of Forest and Range Forest Officer.
15. As rightly held by the learned single Judge, inspite of the categorical findings already recorded in W.P.No.36324/2009, and the said order having attained finality, it is not open for the State Government to once again agitate the very same issue. We deem it appropriate to reiterate the words of the learned single Judge that the attempt made by the State and its authorities to assert to the contrary is to say the least abhors judicial consensus as it challenges findings recorded by this Court that have attained finality.
16. As noticed above, the Government Order dated 07.06.1993, and 20.07.1994, make it clear that the lands notified therein was handed over to the Forest Department with specific conditions that they shall continue as C and D class lands and shall not be notified or treated as ‘reserved forest’. Therefore, the impugned orders passed by the Chief Conservator of Forest and Range Forest Officer are wholly illegal and unsustainable.
17. In the light of the above, we proceed to dismiss the appeal, while directing the appellant State Government to comply with the directions issued by the learned single Judge, in W.P.No.46003/2013, disposed of on 13.09.2017, without any further delay.
The appeal stands dismissed.
SD/- JUDGE SD/- JUDGE DL