THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION No.20517 of 2018
AND
W.P.No.535 of 2020
COMMON ORDER:
1 These two Writ Petitions are filed assailing the action of the
respondent authorities in interfering with their peaceful possession
and enjoyment over the lands in Sy.No.318 admeasuring Ac.162 in so far as W.P.No.20517 of 2018 is concerned and Ac.110 in so far as W.P.No.535 of 2019 is concerned, of Nemalipuri Revenue Village, Chinthalapalem Mandal, Nalgonda District as illegal and arbitrary.
2 In both the Writ Petitions the survey numbers and villages in which the extents of land which the petitioners are claiming is one and the same. Hence these two Writ Petitions are disposed of by this common order.
3 The case of the petitioners in W.P.No.20517 of 2018 was that the petitioners are owners and possessors of agricultural land in Sy.No.318 admeasuring Ac.162 of Nemalipuri village and land admeasuring Ac.54-06 in Sy.No.52 of Vajinepalli village purchased through various registered sale deeds. The allegation was that the respondent Nos.4 and 5, without any authority of law are interfering and disturbing their agricultural activities for the last two years and in fact the respondent authorities are not permitting the petitioners to enter into their lands contending that the subject land is forest land. It is their further case that on their representation to the District Collector in the year 2017, the 2 District Collector directed the Tahsildar to conduct a detailed enquiry and to submit a report. Then the Tahsildar had addressed a letter bearing No.B/22/2018 dated 12.01.2018 giving all the details but so far no action has been taken. However, the respondent Nos.4 and 5 are not allowing them to do agriculture. Hence the Writ Petition.
4 On 20.6.2018 while admitting the Writ Petition, this Court ordered both parties to maintain status quo existing as on that date with regard to possession and enjoyment.
5 The case of the petitioner in W.P.No.535 of 2019 was that the petitioner inherited the property from his forefathers. For the past one year the respondent Nos.5 and 6 are interfering with his peaceful possession and enjoyment of the subject land contending that the entire land in Sy.No.318 of Nemalipuri village including the land of the petitioner is forest land. It is further submitted that the Government never declared the land in Sy.No.318 of Nemalipuri village either as reserved forest or protected forest. But the respondents are claiming it as forest land. It is further submitted that when some private parties are interfering with his possession and enjoyment over an extent of Ac.15.00, one Sukya Naik filed O.S.No.73 of 2011 for perpetual injunction and that suit was decreed in favour of said Sukya Naik holding that the schedule land in the said suit was patta land.
6 The District Forest Officer filed Counter affidavit in W.P.No.20517 of 2018. The same counter affidavit has been adopted in W.P.No.535 of 2020 stating that as per the records 3 available with the Forest Department, the above land is completely Reserved forest and presently the area is under full control and supervision of the forest department. It is submitted that as per the Gazette notification No.795 dated 29.3.1955 issued by the Rural Re-Construction Department, which was published on 15.4.1955, the total area to an extent of Ac.1393.23 gts in Sy.No.318 is protected Forest notified under Section 29 of Hyderabad Forest Act, 1355F. The nature of the land before the settlement as written in records was Uftada Banjara, which shows that it did onto belong to the petitioner's vendor and as such any purchase from him is void. If the petitioner's vendor has got any right over the and in question, he should have produced documentary evidence in reply to the notices issued by the department on different dates in 1963 itself. As no documentary evidence was received from the petitioner's vendor for four years, the Divisional Forest Officer issued a notice lodging the case filed by one Sri Ranga Raja Batta charya i.e. the petitioner's vendor. From this it is evident that no pattas were issued in the said area and no claim can be permitted with respect to the above area. It is further submitted that when the land is notified as Forest in any Government records no pattas can be given.
7 It is further submitted by the respondent that it is clear that the records in the revenue department were not updated as per the notification of Government and many other certificates were issued by the revenue department without cross checking the documents. It is the specific case of the respondent authorities that a joint survey on status of Nemalipur protected forest was conducted 4 along with Revenue, Forest and ADSLR Squad party. As it was pointed as overlapping of area in respect of Sy.No.52 of Vajinepally village with Sy.No.318 of Vajinepally village, the Collector called for remarks of District Forest Officer regarding the matter to settle the issue. In the report, the District Forest Officer, Suryapet submitted that the total area of Ac.1393-23 gts is Protected Forest notified under Section 29 of Hyderabad Forest Act, 1355 F and it was also concluded that the Sy.No.52 in Vajnepally village is created falsely and by ignoring the notification of above area without proper authority. If the pattas were issued in 1958, then it is ulta vires as the issuing of patta is wrongly done without updating the revenue records and hence if any pattas are issued they need to be cancelled and the revenue records should be updated. Hence prayed to vacate the interim order of status-quo dated 20.6.2018. 8 Heard Sri C. Ramachandra Raju, learned counsel for the petitioner in W.P.No.535 of 2020, Sri S. Satyam Reddy, learned senior counsel in W.P.No.20517 of 2018 and the learned Government Pleader for Forests in both the Writ Petitions. 9 The learned counsel for the petitioners submitted that the Government never declared the land in Sy.No.318 of Nemalipuri village either as Reserved forest or as Protected Forest land. It is further submitted that the notification No.795 dated 29.3.1955 issued by the Government declaring the land as Protected Forest, does not pertain to the land in Sy.No.318 of Nemalipuri village but it pertains to some other land of Nambapur. It is further submitted that the respondent himself admitted in the counter affidavit that 5 the land in Sy.No.318 of Nemalipuri village was Agrahar and it is needless to say that the land of Agrahar is purely private land. It is further submitted that even if the subject land was Reserved Forest, as claimed by the respondent authorities, the Reserved Forest land shall not be declared as Protected Forest, under Section 29 of Hyderabad Forest Act. It is further submitted that the notification is only a preliminary notification, but not a final notification and so far there is no final notification even after lapse of 66 years. Therefore, the preliminary notice is no longer in force and shall not be acted upon. It is further submitted that the subject matter land is purely private land and that the allegation of the respondent that patta was granted after issuing the notification is totally false.
10 The claim of the petitioners is that they are the absolute owners of the various extents of land stated supra. But the petitioners have not filed any title deed in support of their contention to show that they are the owners of the lands. Further, the petitioners have not filed any evidence before the Court to show that they are in peaceful possession and enjoyment of the lands in question. The petitioners have not challenged the notification issued by respondents in 1955. The petitioners cannot rely upon the weakness of the respondent authorities. Instead of placing on record for the purpose of primary evidence like link documents, title deeds, the petitioners are relying on the secondary evidence like internal correspondence letters between the forest and revenue officials. When the petitioners are claiming certain relief from the court, it is a prima facie requirement that the bona fides of the 6 petitioners should satisfy this court with regard to their ownership and lawful right and its infringement. Since the petitioners failed to establish their lawful right, question of granting the relief and its infringement does not arise. There are disputed questions of fact with regard to the lands and boundaries as well as title of the parties.
11 It is the case of the Forest department that since 1955, the Forest department is in possession of the subject lands and the petitioners are not in possession of the same and that by way of notification the respondents have clearly indicated the extent of lands, names of villages, survey numbers and boundaries and accordingly the Forest department is taking care of the lands in question.
12 It is to be seen from the record that during 1963, 1964, 1965 and 1967 on number of occasions, the Government has addressed the predecessors of the petitioners as well as some of the petitioners to submit their documentary evidence in support of their claim over the subject lands. But they have not submitted any document and that they have not even attended before the concerned authorities. The petitioners are relying on some third party conveyance deed between the Kakatiya Cements and the Government to show that the lands in Sy.No.318 of Nemalipuri village are private lands. The petitioners cannot take transaction of Kakatiya cements and say because land in Sy.No.318 is private land, it belongs to petitioners but not forest department. This kind of submissions cannot be appreciated. This cannot be treated as 7 direct evidence in support of the claim of the petitioners to show that they are the owners and they are in possession of the subject lands.
13 The petitioners have not challenged the notification issued by the Government in notifying the subject lands as forest lands. When the notification is not challenged, it is not open for the petitioners to advance argument on Sections 29 and 30 of the Forest Act. Since the disputed questions of fact are involved and the possession of the parties also needs to be decided, it is clearly a civil dispute and the petitioners have to approach the competent civil court seeking appropriate relief for declaration of title and recovery of possession if so advised.
14 Whether it is forest or revenue land is not the issue. Even it is revenue land (not forest land), the duty cast upon the petitioner to prove that the subject lands belong to the petitioner by showing boundaries no document is filed to that effect. The revenue authorities stated that the petitioners are not in possession and they do not have any patta in their favour in respect of the subject lands which is evident from Land Records Assistant dated 06.4.1965 addressed to the District Forest Officer, Nalgonda. Moreover, the entries in pahanis, shetwar or any correspondence cannot be treated as title deeds.
15 In the above facts, a reasonable apprehension has to be drawn that as an after thought, after obtaining orders from Court, petitioners would enter into the lands only upon the strength of the Court orders and the same cannot be permitted. In the absence of 8 any title and lawful right, petitioners cannot enter into the land and cannot claim any right and seek relief from this Court under Article 226 of the Constitution of India.
16 Since the petitioners have not relied on specific violation of law by respondents and prayed only for a direction against respondent not to interfere with the possession, this Court relies upon Order 39, Rule 1 of CPC., wherein to grant an order of injunction restraining the respondents from interfering with the possession of petitioner, the duty is cast upon the petitioner to prove their possession. Further to claim title over the property, petitioners have to file title deeds and explain flow of title in their favour. The petitioners failed in both issues.
17 The petitioners are not in possession and are evicted in 2016 as per their affidavit. As per forest officials since 1955 they are in possession and protecting the forest, holds weightage. Both contentions are disputed question of facts.
18 The petitioners have not placed any reliance on O.S.No.73 of 2011 and categorically submitted that they are not taking any shelter of judgment in O.S.No.73 of 2011.
19 In view of the above discussion, these two Writ Petitions fail and accordingly they are dismissed. No order as to costs. Miscellaneous petitions if any pending in these Writ Petitions shall also stand dismissed.
__________________________ T. AMARNATH GOUD, J.
Date: 27-7-2021 Kvsn