THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
W.A.No.650 of 2005
JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)
None for the appellant and none for the respondents.
2. This intra court appeal emanates from an order
dated 01.07.2004, passed by a learned Single Judge, by which the
writ petition viz., W.P.No.5096 of 1993 preferred by the appellant
has been dismissed.
3. Facts
giving rise to filing of this appeal briefly stated are that, one Budhan Khan was granted izara lease in respect of land situated at Budhraopet Village, Khanapur Mandal, Warangal District on the condition that the said deserted village should be rehabilitated and brought under cultivation within the lease period.
The aforesaid Budhan Khan was granted lease for a period of thirty years. During the period of lease, the father of late Ghulam Mustafa and Ghulam Mohammed and the grandfather of respondents No.4 to 6 purchased the izara rights in respect of the said land from Budhan Khan. In the year 1312F, initial survey was ::2::
conducted and land to the extent of 3271 .15 acres was fixed as the total area of the village.
4. The father of respondent No.4 viz., late Ghulam Mustafa approached the State Government sometime in the year 1977 seeking release of the izara land. The Forest Settlement Officer forwarded the representation submitted by father of respondent No.4 viz., late Ghulam Mustafa to the State Government vide memo dated 27.10.1977.
5. Thereafter, the Forest Settlement Officer, by an order dated 09.12.1988, passed under Section 10(2) of the Andhra Pradesh Forest Act, 1967 (briefly 'the Forest Act' hereinafter) held as follows:
In the result, the claims of the petitioners are admitted under Section 10(1) of the Act. The land now being held by the Forest Department in Survey No.56/3 (old numbers) of Budhraopet Village measuring 1999.30 acres was omitted from the village boundaries during the revision survey but during the subsequent verification by the Assistant Director (Survey and Land Records), Warangal, it was found ::3::
(according to the traverse work done only to the extent of Budhraopet Village) that an extent of 1989.08 acres was included in the Khanapur Forest Block and excluded from the area of Budhraopet Village. It is therefore, ordered that the entire extent of 1989.08 acres be excluded from the limits of the proposed forest of Khanapur Block under Section 10(2)(ii) of A.P. Forest Act, 1967.
6. Being aggrieved by the aforesaid order, an appeal was preferred before the District Judge. The District Judge, by judgment dated 07.04.1992, inter alia held as under:
It may be seen that it is not in dispute that the respondents' father was the ijaradar. It is also not in dispute that the Chief Minister passed an order on 25th Aban, 1354 Fasli, a portion of the translated copy which is quoted by the Settlement Officer. The Judgment is Ex.B.1, Ex.B.2 is the photostat copy of the original certified copy of the above decision. The decision in Urdu is in L.C.record pages 313 to 319 and English translation page 321 to 327. Ex.B.3 is the memo of Forest Settlement Officer refusing to give certified copies. Ex.B.4 is the letter from F.S.O., to District Collector. A portion of the above order reads thus:::4::
The Forest Department which is the respondent in this case due to its possession of an extent of 1200 acres has been evading to admit the rights of the Ijaradar by changing its pleas and approached various officers. At last Sri Nabeeb Mohammad Saheb, Subedar, Warangal gave final order on 22nd Thir.1353F. The Subedar, while coming to conclusion of the case, had kept in mind the circular No.1, of 1334 F., and the order of Sri Abdul Basith, the then Collector, and held that the circular which was issued many years after the final decision in the matter of the Ijaradar rights of village Budhraopet, as such the name cannot be applied on this case as facts of the case and perusal of records of the subordinate offices, it appears that on every occasion of the settlement of the case, the Forest Department had an upper hand but it was for the ends of justice to give a satisfactory decision about the rights of Ijaradar and it for want of need of the Government and that of the Department if the land occupied by the Ijaradar could not be restored, his rights could have been acquired under the provision of Land Acquisition Act then in force by paying compensation..... the contention of the appellant appears to be correct.
So, it may be seen that the said judgment of the Subedar is also referred to by the Honorable Minister and therefore, naturally the order of the Minister which is subsequent prevails and hence, no question of res judicata arises. Further, in the note at page 331 of L.C.record, it is clear that Ijaradar and poor ryots of Budhraopet are concerned within this case. Further, it may be seen that even in the grounds of appeal, it is mentioned that at best this is a case for claiming compensation and not for restoration of the land, which goes to show that the land is of the Ijaradar and if really the Government is interested, as suggested by the Chief Minister, Land Acquisition ::5::
proceedings can be taken. Hence, it may be seen that the learned counsel for the appellant has not been able to show any illegality in the order passed by the Forest Settlement Officer ordering that the entire extent of 1989.03 acres be excluded from the limits of the proposed forest of Khanapur block U/s.10(2) (ii) of the A.P.Forest Act, 1967.
In the result, the CMA is dismissed confirming the orders passed by the Forest Settlement Officer, Khammam so far as the other respondents, who are added said to be in possession of about 650 acres of land that matter has to be decided in terms to which the parties. In the circumstances of the case, each party to bear its own costs.
7. The State Government, being aggrieved by the aforesaid order, filed a writ petition being W.P.No.5096 of 1993 before the learned Single Judge, who, by an order dated 01.07.2004, held as follows:
The 2nd respondent, by order dated 09.12.1988, after due enquiry, held that the claims of the petitioners before him, respondent herein (since deceased) by Legal Representatives are admitted under Section 10(1) of the A.P.Forest Act, 1967, ordered that the entire extent of land consisting of 1989.08 acres be excluded from the limits of the proposed forest of Khanapur block under Section 10(2)(ii) of A.P.Forest Act, 1967. This order was assailed before the 1st appellate Court. The 1st ::6::
appellate Court, after reconsidering the entire matter, confirmed the order passed by the 2nd respondent. The findings reached by both authorities is a finding of fact, it cannot be disturbed in the absence of pointing out any reliable evidence to take a different view than the view taken by both the authorities.
8. Learned Additional Advocate General has invited the attention of this Court to the grounds urged by the appellant in the writ petition and has submitted that as many as fifteen grounds were urged to assail the order dated 01.07.2004 passed by the learned Single Judge in W.P.No.5096 of 1993. However, the learned Single Judge has not adverted to the grounds urged on behalf of the appellant and by a cryptic order, has dismissed the writ petition.
9. We have considered the aforesaid submission and have perused the record.
10. The grounds urged by the appellant in the writ petition are reproduced for the facility of reference:
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1. The judgment of the learned District Judge dated 03.12.1988 is contrary to law and evidence on record.
2. The learned District Judge failed to consider that there was a final adjudication in the matter by various authorities including the Forest Settlement Officer, as such the same cannot be opened again by the Forest Settlement Officer. The said order of the 2nd respondent- Forest Settlement Officer is not only hit by the Principles of Res judicata but also a fraud played on the statutory authority by not disclosing about the earlier proceedings and their finality.
3. The learned District Judge, did not consider, at the outset, about the opportunity to the petitioner Department by the Forest Settlement Officer. The Forest Settlement Officer, merely issued only on 1st formal notice, at the initial stage on 16.08.1988, and thereafter he did not give any notice or opportunity and merely described in the award that an ample opportunity was given to the Department, which on the face of it is contrary to the Record. Otherwise, all those facts stated in para-2 would have been brought to the notice of the Forest Settlement Officer.
4. The learned District Judge also did not try to find out the particulars of the claim from the respondents which were not given in the claim petition or in ::8::
so-called representation, namely, the survey numbers, boundaries and the extent etc. As such, the award passed by the Forest Settlement Officer suffers with such grave infirmities including the question res judicata and the claim ought to have been rejected by him in limini.
5. The learned District Judge ought to have considered that the Forest Settlement Officer entertained the claim merely on the basis of the representation made to the Government, long after the finality in the matter including the order of the Forest Settlement Officer earlier.
6. The learned District Judge ought to have held that the judgment of the so-called Revenue Minister dt.25 ABAN 1354 Fasli, relied upon by the Forest Settlement Officer, as well as the learned District Judge, have no relevance, because the said order was not passed in pursuance of any statutory provisions without any opportunity to the Department. As such, the same is liable to be ignored.
7. The learned District Judge ought to have considered that even the said Minister dealt with the matter only with reference to SHIKARGHA and in which there is no reference to the Notification issued under the Hyderabad Forest Act and the earlier decision including the earlier order of the Forest Settlement Officer, dt. 8th Fervardi 1353 F. Even ::9::
otherwise, the said Minister had no jurisdiction to deal with the right of the claimant under the A.P.Forest Act and assume the powers of Forest Settlement Officer, without any opportunity to the Forest Department.
8. The learned District Judge ought to have considered that the claimant/respondents, did not acquire any rights even under the 'IJARA' because the said rights have been cancelled by another enactments subsequently, passed by the Government of Andhra Pradesh as the same, being the 'IJARA' irregularly granted is hit by the said enactment.
9. Further, the learned District Judge ought to have held that there is no mutation of IJARA Rights or Entries made in the Revenue Records in favour of the claimant/respondents, as such, any rights, said to have been decided in favour of them extinguished in course of time for not being implemented.
10. The learned District Judge, failed to consider that the Special Officer, for settlement of IJARA rights, made an enquiry before granting IJARA rights, conducted the enquiry and submitted the report recommending to grant bill makta, rights, to the extent of 900.00 acres and to grant patta for remaining area on concessional rates, as such, there was no semblance of any rights conferred so far as this area of 2,000.00 acres is concerned.
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11. The learned District Judge ought to have held that even the representation made by the claimant/respondents against the said order of the Collector was also rejected by the Government which became final, as such, the alleged rights claimed by the IJARADAR, have been rejected finally, by all the authorities, and the same cannot be agitated again by the 'IJARADAR'.
12. The learned District Judge ought to have considered that after the Forest Authorities rejected the rights of the claimant/respondent, with regard to the extent of 2,000.00 acres and become final. A notification under the Hyderabad, Forest Act was issued declaring the said area also as Reserved Forest. The then Forest Settlement Officer had also rejected the claim of the Ijaradar with regard to 2,000.00 acres which became final. Though the ground was taken in the appeal but the same is not dealt with by the learned District Judge.
13. The learned District Judge ought to have held that the award passed by the Forest Settlement Officer, basing on the vague evidence suppressing the earlier proceedings adduced by the claimant/respondents cannot confer any rights in them.
14. The learned District Judge ought to have held that the claimants No.9 to 30 are not entitled to be ::11::
impleaded as respondents at appellate stage, without any right whatsoever, and opportunity to the petitioner Department, as such, they cannot come on record in these proceedings.
15. The learned District Judge ought to have held that under Section 7 of the A.P.Forest Act, which reads thus,
(a) No right shall be acquired by any person in or over the land included in the Notification under Section 4 except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government of any person, in whom such was vested before the publication of the Notification under Section 4.
(b) No new house shall be built or plantation formed, no fresh clearing for cultivation or for any other purpose shall be made on such land and no trees shall be cut from such land for the purpose of trade for manufacture:
Provided that nothing shall prohibit the doing of any act specified in this clause with the permission in writing of the Forest Settlement Officer;
(c) No person shall set fire or kindle or leave burning any fire in such manner as to endanger or damage such land or forest produce.
(d) No patta in such land shall be granted by or on behalf of the Government.
As such, the respondent/claimants did not acquire any right and the claim is liable to be dismissed on that ground alone.
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16. The learned District Judge ought to have considered that respondents 9 to 30 had already filed the writ petition No.2689/90 exclusively claiming their rights over the disputed land, over part of the disputed land, which is pending, as such, they cannot agitate about their any of rights in these proceedings, which are only consequential rights that are available in case of the success of the 'IJARADARS'.
17. The learned District Judge ought to have considered that after the promulgamation of A.P.Land Reforms (Ceiling on Agricultural Holdings) Act, 1972. Nobody can possess more than the ceiling area, as such, the claim for 2,000.00 acres is fictitious and untenable in court of law and liable to be rejected on the face of it.
18. The learned District Judge ought to have considered that the claimant/respondents themselves declared the said area as in possession of Forest Department and the claim proceedings are pending. Therefore, prima facie they are not entitled to the claim.
19. The learned District Judge, failed to consider that in the verification proceedings under the said land ceiling Act, the verification officer, found that the claimant/respondents are in possession and entitled to only 466.00 acres, as such, the claim for 2,000.00 acres is frivolous and cannot be considered.
20. The learned District Judge ought to have considered that even in the proceedings under the Land Ceiling Act, ::13::
the Land Reforms Tribunal, held that the claimant/respondents are entitled to retain only an extent of 1,4000 standard holdings and found that an extent of 8,1588 standard holdings are in surplus and liable to be surrendered. Therefore, even under the said Act, claimant/respondents are not entitled to any extent more than what is found to be entitled by them much less the area of 2,000.00 acres claimed in these proceedings, as such, the claim itself is liable to be rejected on this ground alone.
11. From a perusal of the aforesaid order, it is evident that the learned Single Judge has not adverted to any of the grounds urged in the writ petition.
12. In Victoria Memorial Hall v. Howrah Ganatantrik Nagrik 1, Hon'ble Supreme Court held that reasons are the heartbeat of every conclusion, apart from being an essential feature of the principles of natural justice, that ensure transparency and fairness, in the decision making process. [See: Maya Devi v. Raj Kumar Batra and others 2, Sant Lal Gupta and others v.
Modern Co-operative Group Housing Society Limited and 1 (2010) 3 SCC 732 2 (2010) 9 SCC 486 ::14::
others 3, Union of India and another v. Talwinder Singh 4 and Union of India v. Ravinder Kumar 5].
13. In view of aforesaid enunciation of law, it is evident that the requirement of assigning reasons has been held as part of justice by the Hon'ble Supreme Court. On perusal of the order dated 01.07.2004, passed by the learned Single Judge in W.P.No.5096 of 1993, it is evident that no reasons have been assigned by the learned Single Judge while deciding the writ petition preferred by the appellant. Therefore, the impugned order ] cannot be sustained in the eye of law.
14. Normally, an order of remand has to be avoided as it prolongs the life of the litigation. In case this Court proceeds to examine the grounds urged by the appellant and answer the same in this intra court appeal, the right of appeal of one of the parties would be taken up. Therefore, in the peculiar facts and 3 (2010) 13 SCC 336 4 (2012) 5 SCC 480 5 (2015) 12 SCC 291 ::15::
circumstances of the case, remand of the case has become inevitable.
15. For the aforementioned reasons, order dated 01.07.2004, passed by the learned Single Judge in W.P.No.5096 of 1993, is set aside.
16. Learned Single Judge is requested to hear the writ petition afresh and to decide the same afresh.
17. Accordingly, the appeal is disposed of. No costs.
As a sequel, miscellaneous petitions, pending if any, stand closed.
__________________ ALOK ARADHE, CJ _______________________ N.V.SHRAVAN KUMAR, J Date: 11.09.2023 LUR