The Hon'ble The Chief Justice Satish Chandra Sharma
and
The Hon'ble Sri Justice A. Rajasheker Reddy
Writ Appeal No.143 of 2021
Judgment: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
This appeal is arising out of a Common Order, dated
13.12.2019, passed by the learned Single Judge, in respect of
W.P.No.118 of 2019.
2. The facts of the case reveal that large number of writ petitions
were preferred, being aggrieved by the Order dated 16.08.2016, passed
by respondent No.3/Revenue Divisional Officer, cancelling pattas
granted in favour of the appellant/petitioner in W.P.No.118 of 2019 and other villagers. The learned Single Judge, by the impugned common order, has dismissed all the Writ Petitions.
3. The facts of the case further reveal that the appellant and other villagers were claiming themselves to be members of Koya Community (Scheduled Tribe) living in Lakshmidevipalli Village, Kothagudem Mandal, Bhadradri-Kothagudem District and a patta was granted to an extent of Acs.2.30 guntas in Survey No.17 of the said Village in favour of the grandfather of the appellant. Similarly, in respect of other villagers also, pattas were granted. The Forest Department started interfering with their possession and in those circumstances, a Writ Petition viz., W.P.No.30038 of 1998 was preferred. The said Writ Petition was disposed of by an order dated 11.02.2002, directing the Forest officials not to interfere with the 2 possession and enjoyment of the subject land, unless pattas granted to the petitioners therein were cancelled. The matter was looked into by the Revenue Department and as pattas were granted in respect of the land, which was part of reserve forest, a show cause notice was issued on 23.04.2016 to all patta holders and after receiving their reply, Order dated 16.08.2016, was passed by respondent No.2/RDO, cancelling their pattas. The details of the Writ Petitions filed before this Court are reproduced in a tabular form as under:
Sl. W.P.No. Party Name Assignment made in Extent, Sy.No. and place
No. S/Shri favour of
S/Shri
1. 30 of 2019 Kunja Nagaiah Kunja Nagaiah Ac.2.30 guntans in Sy.No.17 of
Lakshmidevipalli village
2. 108 of 2019 Ms. Maddi Yashoda Maddi Yerriah Ac.2.30 cents in Sy.No.17/35 of
Lakshmidevipalli village
3. 110 of 2019 Ms. J.Durga Bhavani Kunja Lakshmaiah Ac.5.05 cents in Sy.No.17 of
Lakshmidevipalli village
4. 111 of 2019 Punem Rama Krishna Punem Rama Krishna Ac.2.30 cents in Sy.No.17/41 of
Lakshmidevipalli village
5. 113 of 2019 Thati Bala Krishna Thati Veeraiah Ac.2.30 cents in Sy.No.17/37 of
Lakshmidevipalli village
6. 115 of 2019 Chapala Abbas Chapala Nagaiah Ac.2.30 cents in Sy.No.17/34 of
Lakshmidevipalli village
7 118 of 2019 Settipalli Siva Kumar Settipalli Mallaiah Ac.2.30 cents in Sy.No.17 of
Lakshmidevipalli village
8. 121 of 2019 Punem Papaiah Punem Papaiah Ac.2.30 cents in Sy.No.17 of
Lakshmidevipalli village
9. 145 of 2019 Thati Shankar Thati Suraiah Ac.2.30 cents in Sy.No.17/36 of
Lakshmidevipalli village
10. 150 of 2019 Kunja Nagaiah Kunja Nagaiah Ac.2.30 cents in Sy.No.17 of
Lakshmidevipalli village
11. 151 of 2019 Koram Narasaiah Koram Narasaiah Ac.2.30 cents in Sy.No.17/38 of
Lakshmidevipalli village
12. 155 of 2019 Chinta Naga Raju Chinta Bakkaiah Ac.2.30 cents in Sy.No.17/40 of
Lakshmidevipalli village
13. 169 of 2019 Chatla Bakkaiah Chatla Bakkaiah Ac.1.00 cents in Sy.No.17/55 of
Lakshmidevipalli village
14. 187 of 2019 Vanka Gopal Rao Vanka Narasaiah Ac.2.30 cents in Sy.No.17/33 of
Lakshmidevipalli village
15. 355 of 2019 Ms.Punem Nagamma Punem Borraiah Ac.2.00 cents in Sy.No.17 of
Lakshmidevipalli village
16. 356 of 2019 Ms. K.Hymavathi Kunja Ramaiah Ac.2.30 cents in Sy.No.17/47 of
Lakshmidevipalli village
17 357 of 2019 Ms. Kalam Savitramma Kalam Muthaiah Ac.2.00 cents in Sy.No.17 of
Lakshmidevipalli village
18. 364 of 2019 Koram Nagesh Koram Yellaiah Ac.5.20 cents in Sy.No.17 of
Lakshmidevipalli village
4. The undisputed facts of the case reveal that the entire land, over which the appellant and other villagers are claiming their right on account of pattas granted to them, is a part of the reserve forest.
Survey No.17 comprises of Acs.2194.20 guntas, out of which, Acs.2180.20 guntas is included in reserve forest, leaving only 3 Acs.14.00 guntas outside the forest block. The Forest Settlement Officer excluded only Acs.25.00 guntas of land from the forest block for the purpose of Gairan and the entire remaining land was declared as reserve forest in the year 1355 Fasli (1940), after following due process of law under the Forest (Conservation) Act, 1980. The notification declaring the forest land has not been set aside by any Court. Thus, the undisputed facts make it very clear that pattas were granted in respect of the land, which is part of the reserve forest and after following due process of law, the same has been cancelled.
Paragraphs 51 to 63 of the order passed by the learned Single Judge read as under:
51. The said claim was opposed by the Forest Department. They have asserted that the land claimed by the petitioner was not in possession of the petitioner and entire extent of land is part of the reserved forest. Survey No.17 comprises of Acs.2194.20 guntas, out of which Acs.2180.20 guntas included in the reserved forest, leaving only Acs.14.00 guntas outside the forest block. The Forest Settlement Officer excluded Ac.25.00 guntas of land from the forest block for the purpose of Gairan and the entire remaining land was declared as reserved forest in the year 1355 Fasli.
Notification was issued after following due procedure as required by the Forest Act. They also asserted that illegally assignments were granted, original tribal assignees were dispossessed by the non-tribals by way of purchase or otherwise and the Government lands were encroached by the non-tribals. As per the orders of the District Collector enquiry was conducted under Section 166-B of the Telangana Land Revenue Act and passed orders for cancellation of assignments sanctioned to the ineligible persons and persons were evicted from the lands by the Tahsildar and possession 4 of the land was handed over to the Forest Department by conducting proper panchanama in the year 1964 as per the District Collector letter dated 24.03.1964. It is further stated that land in issue was covered by the miscellaneous species growth and plantation raised by the Forest Department. From out of this land, 0.25 hectares was handed over to the Singareni Collieries Company Limited for construction of Helipad as per G.O.Ms.No.664, F&R (Forest.I) Department, dated 18.10.1979 and the remaining extent is under the administrative control of the Forest Department. They denied the contention that petitioners were cultivating the land.
52. Having regard to the respective submissions, the Hon'ble Court by order dated 11.12.2013 disposed of the Writ Petition No.22498 of 2010, directing the District Collector, Khammam to review the assignments made to the 54 persons by the then Special Social Service Officer, Yellandu in the year 1956 and consider their cases either for regulation or cancellation by due process of law.
53. Pursuant to the directions issued by learned single Judge of this Court in the above writ petition, the administrative machinery initiated process to review all assignments granted and take appropriate decision of cancellation of assignments culminating in the order impugned. For all the afore stated reasons, the claim of delay in initiating steps to cancel the assignment is not valid. The material on record would also disclose that though the original intendment was to assign lands to the local tribals, in fact local tribals were dispossessed long ago and land changed hands from tribals to non-tribals. Thus, claims of non-tribals in agency area, even assuming that long ago assignments were granted, cannot be allowed and more so, when it is asserted by the Forest Department and the District Collector that these persons are never in possession and Forest Department continues to be in possession.
54. Prior to Act, 1980 also, there was a clear embargo on granting assignment to any person in Forest land unless 5 conditions imposed in Section 34 of the Land Revenue Act, 1317 Fasli are complied. Apparently, those two conditions are not complied before granting assignment. Even this provision is subject to overarching special laws on protection and preservation of forest. It is an exception to preservation of forest land and has to be construed strictly. In view of Section 2 of the Act, 1980 even the power under Section 34 of Land Revenue Act, 1317 F is denuded.
55. Even if the said provision is complied, it may not validate the assignment and Court is entitled to go into the impact it may have vis-à-vis affecting natural resources as elucidated by the Supreme Court in the decisions noted above. In preserving/protecting natural resources pubic trust doctrine would apply and no action contrary to such protection/preservation is immune from consideration by the writ Court in exercise of power of judicial review under Article 226 of the Constitution of India.
56. Writ remedy is discretionary remedy and equitable remedy. Granting of relief depends on the facts of a given case. Where injustice is palpable writ Court would come to the rescue of affected person and would grant relief. It is not bound by procedural limitations/delay. However, over a period of time Court opted to self-imposed restraint on its jurisdiction. Further, even when petitioners make out a point against sustainability of an order, writ Court need not grant relief if granting of relief would result is restoring another illegal decision.
57. Writ Court may refuse to grant relief in a case where justice and larger public interest require denial of such relief as compared to grievance of an individual, even assuming there is breach of natural justice/statutory prescription writ Court do not issue futile writs. It must be exercised with great caution and only in furtherance of public interest or to set right grave illegality. Larger public interest must be kept in mind to decide whether intervention of the court is called for in a given case, more so when community properties are involved.
658. While considering the grievance in a petition under Article 226, the writ court need not grant relief merely because the petitioner makes out a legal point. 'It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point' [RAMNIKLAL N BHUTTA Vs. STATE OF MAHARASTRA1]. 'Even if a legal flaw can be electronically detected, this Court would not interfere save manifest injustice or unless a substantial question of public importance is involved [RASHPAL MALHOTRA Vs SATYA RAJPUT MRS AND ANOTHER2 and COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH AND ANOTHER Vs. K G S BHATT3]'.
59. In the following three leading decisions this very issue was considered by the Hon'ble Supreme Court.
59.1. In GADDE VENKATESWARA RAO V.
GOVERNMENT OF A.P.4, the Panchayat Samithi passed resolution on 25.08.1960 to locate a primary health centre at Dharmajigudem. It passed another resolution on 29.05.1961 to locate it at Lingapalem. On a representation, Government passed orders on 07.03.1962 setting aside the second resolution of Panchayat Samithi and thereby restoring the earlier resolution dated 25.08.1960. On a review, Government passed orders on 07.03.1962 accepting shifting of primary health centre to Lingapalem. The earlier order was without notice to the Panchayat Samithi and later order was passed without notice to villagers of Dharmajigudem, on whose representation Government passed orders on 07.03.1962.
59.2. To the extent relevant for the case on hand, Supreme Court observed at page 189 as under:
"Both the orders of the Government, namely, the order dated 7-3- 1962, and that dated 18-4-1963, were not legally passed:
the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order 1 (1997) 1 SCC 134 2 AIR 1987 SC 2235 3 AIR 1089 SC 1972 4 AIR 1966 SC 828 7 made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village."
59.3. Supreme Court further observed that if the High Court quashed the order of Government dated 18.04.1963, it would have restored another illegal order and it would have given health centre to a village contrary to the valid resolution passed by the Panchayat Samithi and upheld the decision of High Court in not exercising its extraordinary discretionary jurisdiction.
59.4. In S.L.KAPOOR V. JAGMOHAN5, principal contention was that the order of supersession of New Delhi Municipal Corporation of Delhi made by Lt. Governor was in complete violation of principle of natural justice and total disregard of fair play. No notice to show cause was issued and no opportunity was afforded on the allegations made for such supersession. Supersession resulted in premature termination of tenure of members of the Municipal Committee. Supreme Court held opportunity needs to be given before superseding Committee and that the Municipal Corporation was not put on notice before exercising power to supersede the committee and held such action as illegal.
59.5. The observations of Hon'ble Supreme Court in paragraph-24 are apt to note at this stage. Supreme Court held, "24. ........ As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."
59.6. The view expressed by the Supreme Court in S.L.Kapoor (supra) is referred to and relied upon in subsequent decisions.
59.7. In M.C.MEHTA VS. UNION OF INDIA AND OTHERS6, Bharat Petroleum Corporation Limited (BPCL) 5 (1980) 4 SCC 379 6 (1999) 6 SCC 237 8 assailed cancellation of retail petroleum outlet on the ground that prior to such cancellation, no notice or opportunity was afforded to BPCL. Earlier the very same piece of land was allotted to Hindustan Petroleum Corporation Limited (HPCL). This allotment was cancelled, and allotment was in turn made to BPCL. By order dated 10.03.1999, the plot was restored to HPCL withdrawing from BPCL. Both have contended that principles of natural justice violated when allotment was cancelled.
59.8. In the above factual background, Supreme Court observed as under:
"15. It is true that whenever there is a clear violation of the principles of natural justice, the courts can be approached for a declaration that the order is void or for setting aside the same. Here the parties have approached this Court because the orders of the Department were consequential to the orders of this Court. The question however is whether the Court in exercise of its discretion under Article 32 or Article 226 can refuse to exercise discretion on facts or on the ground that no de facto prejudice is established. On the facts of this case, can this Court not take into consideration the fact that any such declaration regarding the 10-3-1999 order will restore an earlier order dated 30-7-1997 in favour of Bharat Petroleum Corporation which has also been passed without notice to HPCL and that if the order dated 10-3-1999 is set aside as being in breach of natural justice, Bharat Petroleum will be getting two plots rather than one for which it has no right after the passing of the latter order of this Court dated 7-
4-1998? " (emphasis supplied) 59.9. In M.C.Mehta, by referring to Gadde Venkateswara Rao, Supreme Court observed, "17. ..... The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law."
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21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice." (emphasis supplied) 59.10. This principle is applied in all subsequent decisions by the Hon'ble Supreme Court.
960. In KALASAGARAM, SECUNDERABAD CULTURAL ASSOCIATION Vs STATE OF ANDHRA PRADESH7, learned single Judge of this Court, as he then was, later elevated to Hon'ble Supreme Court, considered the very issue and held as under:
"10. There is no controversy whatsoever about the nature of the land granted to the petitioner by the respondent- Corporation on lease. The land itself admittedly, does not belong to the Corporation. The land belongs to Government Employees Cooperative Housing Society and forms part of sanctioned layout. In the layout the land in question is admittedly reserved for the purpose of play ground, park etc. May be, under the provisions of the layout Rules and the Hyderabad Municipal Corporation Act, after the reservation of land for parks and play grounds, the lands stood vested in the Municipal Corporation.
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14. Even if it is to be assumed that the impugned order suffers from some infirmities, should the Court grant relief to the petitioner and issue writ as prayed for? Whether the petitioner is entitled for any relief from this Court? It is settled law that this Court does not issue writs in exercise of its jurisdiction under Article 226 of the Constitution of India, as a matter of course. The Court exercising jurisdiction under Article 226 of the Constitution of India is also a Court of equity. The relief to be granted in exercise of such power is an equitable one. Mere infraction of a statutory provision would not automatically give rise to a cause for issuing a writ of Mandamus. The Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law' (See A.P. State Financial Corporation v. Gar Re-Rolling Mills, (1994) 2 SCC 647 at 662. Writ of Mandamus is highly discretionary 13 1997 (6) ALD 277 PNR,J W.P.No.30 of 2019 & batch 35 remedy as the aggrieved person has to not only establish the infraction of a statutory provision of law but required to further establish that such infraction has resulted in invasion of a judicially enforceable right. The existence of a right is the foundation of the jurisdiction of Court to issue a writ of Mandamus.
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16. Be that as it may, the Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel the Government or statutory authorities to act in an illegal manner ........".
(emphasis supplied)
61. Guided by the plethora of precedent decisions, it is seen that in the cases on hand land in issue is reserved forest land. The reserve forest land vests in Forest Department and designated authority of Forest Department is custodian. The reserve forest land cannot be used/diverted for any purpose 7 1997 (6) ALD 277 10 other than development of forest growth. Revenue authorities have no competence to deal with forest land and assign such land. Section 33 of Land Revenue Act, 1317 Fasli does not give free licence to revenue authorities and is subject to Act, 1927, Act, 1967 and Act, 1980 and subject to overarching public interest and public trust doctrine. From long time possession vested in the Forest Department. Thus, merely on the ground that after long lapse of time power is exercised to cancel the assignment cannot enure to the benefit of petitioners as granting relief to petitioners would result in restoring another illegal decision. More so, when possession is not proved on contest with Forest Department. Permitting petitioners to cultivate land in reserved forest is against public interest.
62. All the issues are answered against petitioners. Thus, prayers sought in the Writ Petitions cannot be granted. However, if petitioners are otherwise entitled to assignment of land, they may apply to the competent authority. Notwithstanding dismissal of these writ petitions, their request, if any made, be considered objectively.
63. Writ Petitions are accordingly dismissed. Pending miscellaneous petitions if any shall stand closed."
5. The undisputed facts make it very clear that the land in question is a reserve forest and certainly vests with the Forest Department and the designated authority of the Forest Department is the custodian.
The revenue authorities have no right or authority to assign forest land to any individual, unless and until it is de-reserved after following due process of law.
6. In the present case, as the land in question was part of the reserve forest, the learned Single Judge was justified in dismissing the 11 Writ Petition. This Court also does not find any reason to interfere with the order passed by the learned Single Judge.
7. Admission is declined.
8. Writ Appeal is, accordingly, dismissed.
Consequently, Interlocutory Applications, pending if any, stand dismissed.
_______________________ Satish Chandra Sharma, CJ ____________________ A. Rajasheker Reddy, J Date:10.11.2021 lur