Andhra Pradesh High Court - Amravati
Mukkamala Estates Pvt. Ltd. vs Tahsildar, Ibrahimpatnam, on 15 March, 2023
1
* HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ WRIT PETITION No.20430 of 2009
% 15th March, 2023
# Mukkamala Estates Pvt. Ltd.,
... Petitioner..
AND
$ Tahsildar, Irahimpatnam, Krishna
District and five others.
... Respondents.
! Counsel for the Petitioner : Mr.P.Sri Raghuram, Senior Counsel
Mr.N.Ashwani Kumar
^ Counsel for the respondents: Mr.Sasi Bhushan Rao on behalf
of Additional Advocate General
Government Pleader for Revenue
Government Pleader for Forest
< Gist:
> Head Note:
? Cases referred:
1. AIR 1991 SC 604
2. (2011) 5 ALT 57
3. (1992) 2 SCC 168
4. (2005) 13 SCC 477
5. (1915) 29 Mad LJ 276 = AIR 1916 Mad 789 (2)
6. (1993) 1 SCC 161
7. (2014) 3 SCC 430
8. (2022) 7 SCC 508
9. 2014 (3) ALT 473
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.20430 of 2009
ORDER:
This Writ Petition is filed for the following reliefs:
i) For holding that the action of the 2nd respondent
in not registering the fours sale deeds dated 21.03.2009
(covered by Document in P.91, 96, 97 and 98 of 2009 in
respect of 111.03 Acres comprised in Survey No.86 of Nave
Pothavaram village in Ibrahimpatnam Mandalam in Krishna
District as illegal, void and inoperative and to direct the 2nd
respondent to release the same duly registered;
ii) Further to declare that land in an extent of Acres
111.03 cents covered by R.S.No.86 situated in Navi
Pothavaram village in Ibrahimpatnam Mandalam in Krishna
District not having been notified as forest land in terms of
Section 4 of the A.P. Forest Act, cannot be declared as
Forest area, and accordingly, interdict the respondents from
interfering with possession and enjoyment of the petitioners
over the said extent of land and;
iii) To declare the order of the Principal Chief
Conservator of Forest, Hyderabad, i.e., the 4th respondent
herein, issued in Rc.No.3495/2009-J1, dt.16.03.2009, as
illegal, void, inoperative and set aside the same and pass
such other order or orders as this Hon'ble Court may deem
fit and proper in the circumstances of the case.
2) This Court has heard Sri P. Sri Raghuram, Learned
Senior Counsel appearing for the petitioner, Sri Sasi
Bhushan Rao, learned counsel assisting the learned
Additional Advocate General, learned Government Pleader
for Revenue and the learned Government Pleader for Forest.
3) This is a case with a long and chequered history. The
dispute pertains to land of an extent of Ac.111.03 cents in
R.S.No.86 of Nave Pothavaram village in Ibrahimpatnam
Mandalam. The petitioners assert their title to this land and
the respondent State has also staked its claim to the same
land and claims that it is a part of a notified Forest.
4) According to the learned senior counsel, this land was
initially part of the Zamindari of Valluru Estate and a rough
patta was issued in favor of the Zamindar in 1928 itself.
The said extent was in the enjoyment of the Zamindar as his
private land and he sold the same by a registered sale deed
dated 07.08.1962. The purchasers were in possession and
thereafter the present set of petitioners have purchased the
land under four sale deeds dated 21.03.2009. When these
documents were presented for registration, the Sub-
Registrar did not register the same on the ground that there
is a dispute pending with regard to the land. Therefore, one
prayer in the Writ Petition is for registration and release of
these documents. He submits that this extent is private
land separately assessed to tax that it was not part of the
zamindari estate and did not vest in the Government after
the Estate Abolition Act.
5) In addition, learned senior counsel submits that even
earlier when the Forest Department had made a claim on
the land, W.P.No.26471 of 1976 was filed for joint survey of
the land measuring Ac.111-03 cents situated in old
Sy.No.74 and 75 (New Survey No.86) of Navepothavaram.
This Writ Petition was dismissed by an order dated
26.04.1977. Against the same, Writ Appeal No.1324 of
1997 was filed. During the course of hearing the Division
Bench realized that the representation given by the
petitioner was pending before the authorities. Therefore, the
Writ Appeal was disposed of directing the petitioners to
make a detailed representation, which was to be dealt with
by the Divisional Forest Officer on merits. Accordingly, the
petitioners in that case made a representation which was
rejected on the ground that the Forest Department is not
the competent authority to survey the land and that the
petitioners' request to conduct survey does not deserve any
consideration.
6) Learned senior counsel submits that a perusal of the
entire record would show that even as on date a final
Notification under Section 15 of the A.P. Forest Act, 1967 is
not issued and that at various points of time Joint
Inspections were conducted which clearly indicated the
existence of serious discrepancies in the location and
boundaries of the so called reserve forest land. He also
points out that officers have recommended for publication of
errata notification etc., and that a reading of the counter
affidavit filed and the documents submitted would make
this crystal clear. He submits that even the Forest
Department is not very sure of the extent of land it claims
as reserve forest area or if it includes the land in Sy.No.86 of
Navepothavaram measuring Ac.111.03 cents. As per him
this extent is private land of the Zamindar and not a part of
the Estate at all. Learned senior counsel took this Court
through the counter affidavits and documents filed in
support of his submission that there is no clarity. He
asserts that this land was never notified as a 'Reserve
Forest' at all, more so in accordance with the Forest Act.
He points out that at the very inception, the original
notification issued under Section 4 of the Forest Act itself,
the survey numbers etc., are not mentioned. Therefore, he
submits that this is an issue which goes to the root of the
matter and that the petitioners were right in requesting for a
survey to localize their land vis-a-vis the claim of the Forest
Department. Alternatively it is submitted that the Forest
Department is claiming rights over the property, but its
rights were never crystallized and the procedure stipulated
under the Act has not been followed for notifying this land.
He also points out that the contention of the Department
that the Notifications have become final and no claims were
made within the stipulated time is also not correct for the
reason that the Notifications published do not contain the
survey numbers of this land for the affected parties to make
a claim as required nor were the mandatory notices served
as required under the Forest Act. Unless and until the
notification is published with clarity and the same is duly
communicated as warranted under the Forest Act none of
the land owners or persons claiming to have any right can
actually make a claim. Therefore, he contends that in the
existing state of affairs it cannot be contended that no
claims are filed or that the rights are extinguished. He
reiterates that the petitioner is entitled to the 2nd prayer
also.
7) Lastly, he submits that considering the fact situation
and the obvious and clear errors in the procedures adopted,
the order of the Principal Chief Conservative Forest Officer
dated 16.03.2009 is also to be set aside, since
superimposing a fresh survey on the old Section 4 of the
Forest Act Notification is not correct. He relies on the
contents of this letter itself to point out the lack of clarity. A
written brief is also filed summarizing the points.
8) Sri Sasi Bhushan Rao, learned Special Government
Pleader also took great pains to argue the matter at length
for the State.
9) The first and foremost submissions made by Sri Sasi
Bhushan Rao is that under the Forest Act, once the
Notifications are issued and a particular area is declared as
reserve forest area any further claims can only be filed
before the Settlement Officer and then the Tribunal
constituted. As per him, no claims were preferred and the
land vested with the State. He, therefore, submits that a
writ is not maintainable. He also contends that all the
rights of the erstwhile owners are also extinguished as per
the Act. He also strongly urges that the petitioner's
predecessors in title did not obtain a patta under the Estate
Abolition Act, 1948 and that they have no title to the land
which has vested in the Government. It is also pointed out
that the entire land including the presently disputed area
i.e., Ac.111.03 cents vested in the Government and the
petitioners or their predecessors do not have any right, title
or interest in the property which could have been conveyed.
He also argues on the basis of cases reported in Pollisetti
Pullamma v Kalluri Kameswaramma1 and Rani
Sundarammani v Government of Andhra Pradesh and
Others2 that the petitioner failed to establish that the land
was a private land. He also submits that the Division Bench
clearly distinguished between the private land and estate
land and he submits that in this case the petitioners have
not filed any evidence that the land Ac.111-03 cents are
actually private lands. He points out that either proof of
direct cultivation or other indications are not visible from
the record. Therefore, he submits that the petitioner's
predecessors themselves had no title and consequently
petitioners also cannot claim any further rights. He also
points out that the Forest Act is self contained Code and
that this Court should not, therefore, interfere in the issues
of fact and law, which are belatedly raised in this case.
10) Learned Government Pleader argues on behalf of the
Sub-Registrar and makes his submissions in line with his
counter affidavit. According to him, the mere fact that
earlier sale deeds were registered in 1962 do not lead to a
AIR 1991 SC 604
(2011) 5 ALT 57
conclusion that the current sale deeds were also valid
documents. He points out that once the error has been
noticed the Registration Department has taken prerequisite
steps to protect the Government land. Therefore, it is his
contention that the stand taken by the department in not
registering the sale deeds is correct and valid.
COURT:
11) A major defense of the respondents is that appropriate
notifications have been issued commencing with the Section
4 Notification under the Forest Act 1967 and that in Navi
Pothavaram village, an extent of Ac.858.00 cents, has been
declared as a reserve forest area. Therefore, it is submitted
that the Writ is not maintainable and / or that the
petitioners claims do not subsist.
12) Chapter-II of the Forest Act 1967 deals with the
procedures involved in this aspect. Section 4 deals with the
Notification that is to be issued by the Government;
signifying its intention to declare a "reserve forest" Section 6
deals with the Proclamation to be issued by the Government
specifying the extent of land etc., proposed to be declared as
a reserve forest and also appointment of Forest Settlement
Officer to consider the objections. Subsequent sections deal
with the procedure to be followed by the Forest Settlement
Officer etc. Section 15 states that if an objection is not
filed within the period fixed under Section 6 or if Appeal has
been disposed of under Section 13 of the Act by the District
Court etc., the Government may publish a notification
specifying definitely the limits of the forest which is intended
to be held as 'reserve'. These provisions of law and the
consequences mentioned therein are relied on by the State.
13) This Court is, therefore, proposing at the outset to
scrutinize the documents filed and the sequence of events to
see if the statutory procedures were followed leading to a
declaration of the Reserve Forest and the extinguishment of
the petitioner's rights.
PROCEDURE UNDER THE FOREST ACT:
14) Prayer (ii) of the writ is for a declaration that the
Ac.111.03 cents was not notified as a Forest area and is not
a Forest land. Since the parties are at issue on this, this is
taken up at the outset.
15) On 14.05.1970 a Notification under Section 4 of the
Forest Act was published. This is filed at page No.223 of the
paper book. The area proposed to be declared is Ac.858.00
cents in Navi Pothavaram village.
16) It is seen from this gazette publication that the Forest
Department issued the Gazette Notification on the basis of
its pillars (carens) only and also the boundaries. There is
absolutely no reference to the survey numbers or the
extents included in the 858 Acres. Neither is there any
reference to a revenue department survey before this date.
However, in the boundaries there is a mention of certain
survey numbers.
17) The proclamation under Section 6 was made in the
Gazette on 04.03.1971. This was filed at page No.231 of the
paper book. Even in this publication there is no reference
to the Survey numbers or the extents. It is also mentioned
clearly in this notification that if no claims are preferred the
rights will be extinguished after the publication of Section
15 Notification.
18) Interestingly in page 5 of the Counter filed by R 3 it is
mentioned that "due to some mistake" the Section 4
notification was again published in District Gazette 9/1982
on 14-9-1982. Copy of the said Gazette is filed at page 244
of the paper book. This means that the procedure was
started once again in September 1982 since a Sec.4
Notification expresses the intention to declare an area as a
Forest.
19) After the Forest Settlement Officer (FSO) is appointed
he has a duty as per Section 6 the Andhra Pradesh Forest
Act and the Settlement Rules, 1969 to serve a copy of the
proclamation on every known or reputed owner or occupier
of any land included in the area or adjoining the land
proposed to be constituted as a Reserve Forest or on his
recognized agent or manager and to consider their
objections if any. The detailed procedure to be followed by a
Forest Settlement Officer is also specified from Rule 3
onwards. The form of proclamation under sub-section 2 of
Section 6 is also specified in Form-3. Section 6 (2) of the Act
which has an important bearing on this issue is reproduced
here:
"Section 6 (2) The Forest Settlement Officer shall
also serve in the manner prescribed, a copy of the
proclamation on every known or reputed owner or
occupier of any land included in or adjoining the
land proposed to be constituted as a reserved
forest, or on his recognised agent or manager."
20) The language in the rule is clear and preemptory. It
specifies how the proclamation copy should be served on
every person etc., including the owners/occupiers of the
adjoining land. This pre-supposes that the department
must be aware of both the land included in and also the
land adjoining the proposed reserve forest. To meet this
contingency the Forest Department must have clear details
of the land included and also the adjoining lands to
determine the boundary marks and the limits of the forest
for the purposes of enquiry and also for the final decision
under Section 15 of the A.P.Forest Act, 1967, which is as
follows:
"Section 15 Notification declaring Forest reserved
(1) Upon the occurrence of the following events namely:
(a) the period fixed under section 6 for preferring of an
objection or a claim had elapsed, and every
objection or claim made under that section was disposed
of by the Forest Settlement Officer ; and
(b) if any such claim was made, the period limited by
section 13 for preferring an appeal from the order
passed on such claim had elapsed, and every appeal
presented within such period was disposed of by the
appellate authority ; and
(c) all proceedings mentioned in section 10 were taken
and all lands, if any, to be included in the proposed
forest, which the Forest Settlement Officer had, under
section 10, elected to acquire under the Land
Acquisition Act, 1894, had become vested in the
Government under Section 16 of that Act; the
Government may publish a notification specifying
definitely according to boundary marks erected or
otherwise, the limits of the forest which it is
intended to reserve and declaring the same to be
reserved from a date to be fixed by such notification
and from the date so fixed, such forest shall be
deemed to be a reserved forest.
(2) Copies of the notification shall also be published in
the District Gazette, if any, and in the manner
provided for the proclamation under section 6."
The final notification should also have the clear details of
the boundary or the outer limit of the Forest.
21) The manner in which the F S O has to conduct the
enquiry, the time frames, the details to be mentioned in the
proclamation/the consequences, powers of the FSO etc.,
are spelt out with clarity in Section 6, 8 and 9 of the Act.
The orders that can be passed including the compensation
payable etc., are specified in Sections 10, 11 and 12. For
this judgment Section 10 is important and it is reproduced
here-
"Section 10 Claims to Certain rights
(1) Where the claim relates to a right in or over any land
other than the following rights:
(a) a right of way;
(b) a right to water course, or to use of water;
(c) a right of pasture; or
(d) a right to forest produce; the Forest Settlement
Officer shall, after considering the particulars of
such claim, and the objections of the forest officer, if
any, pass an order, admitting or rejecting the same
wholly or in part after recording the reasons
therefor.
(2) (a) If any claim is admitted wholly or in part under
sub section (1), the Forest Settlement Officer may:
(i) accept the voluntary surrender of the right by the
claimant or determine the amount of compensation
payable for the surrender of the right of the claimant, as
the case may be; or
(ii) direct the exclusion of the land from the limits of the
proposed forest; or
(iii) acquire such land in the manner provided by the
Land Acquisition Act, 1894 (hereafter in this sub
section referred to as the said Act).
(b) For the purpose of acquiring such land:
(i) the acquisition shall be deemed to be for a public
purpose; and the notification under Section 4 shall be
deemed to be a notification under sub section (1) of
Section 4 of the said Act;
(ii) the Forest Settlement Officer shall be deemed to be a
Collector under the said Act, and the claimant
shall be deemed to be a person interested and
appearing before him in pursuance of a notice given
under Section 9 of the said Act;
(iii) the provisions of Section 5 A, 6,7 and 8 of the said
Act shall not be applicable; and
(iv) the Forest Settlement Officer with the consent of the
claimant, or the court as defined in the said Act
with the consent of the claimant and of the Government
may, instead of money compensation, award
compensation by the grant of any other land in
exchange, by the grant of any right in or over land or
partly by the grant of any land any right therein and
partly by the payment of money."
22) Sub-section 2(a)(ii) gives him the power to exclude
land from the limits of the proposed forest which again
means that he should have clear and cogent data regarding
the limits or boundaries etc. The power to acquire the land
in the manner provided under the Land Acquisition Act
1894 and to determine compensation is also conferred on
the FS0. The Section 4 notification under the Forest Act will
be deemed to be a notification under the L.A. Act 1894.
[Section 10(2)(b)(i)] Thus these sections underline the need
for absolute clarity in the notifications including the
boundaries, extents, ownership, occupancy etc. This legal
fiction of the Forest Act Sec 4 notification being "deemed" to
be a Section 4(1) under the Land Acquisition Act 1894
imposes a positive duty on the Forest Department to ensure
that the notice of the proposed acquisition should be clear
with all the details or else the whole procedure will lapse
and be held to be bad in law. The decision in Madhya
Pradesh Housing Board v Mohd Shafi3 states the
following in para 8:
"....The notification has to be published in the
locality and particularly persons likely to be
affected by the proposal have to be put on notice
that such an activity is afoot. The notification is,
thus, required to give with sufficient clarity not
only the "public purpose" for which the acquisition
proceedings are being commenced but also the
"locality" where the land is situate with as full a
description as possible of the land proposed to be
acquired to enable the "interested" persons to
know as to which land is being acquired and for
what purpose and to take further steps under the
Act by filing objections etc., since it is open to
such persons to canvass the non-suitability of the
(1992) 2 SCC 168
land for the alleged "public purpose" also. If a
notification under Section 4 (1) of the Act is
defective and does not comply with the
requirements of the Act, it not only vitiates the
notification, but also renders all subsequent
proceedings connected with the acquisition bad."
23) Although it is a decision under the National Highways
Act, 1956 still this court opines that the following passage
from Competent Authority v Barangore Jute Factory
and Others4 is also relevant in this contest:-
"......
So far as the question whether the impugned
notification meets the requirement of Section
3-A(1) of the Act regarding giving brief
description of land is concerned, we have
already shown that even though plot numbers
of lands in respect of each mouza are given,
different pieces of land are acquired either as
whole or in part. Wherever the acquisition is of
a portion of a bigger piece of land, there is no
description as to which portion was being
acquired. Unless it is known as to which
portion was to be acquired, the petitioners
would be unable to understand the impact of
(2005) 13 SCC 477
acquisition or to raise any objection about user
of the acquired land for the purposes specified
under the Act or to make a claim for
compensation. It is settled law that where a
statute requires a particular act to be done in
a particular manner, the act has to be done in
that manner alone. Every word of the statute
has to be given its due meaning. In our view,
the impugned notification fails to meet the
statutory mandate. It is vague. The least that
is required in such cases is that the
acquisition notification should let the person
whose land is sought to be acquired know
what he is going to lose. The impugned
notification in this case is, therefore, not in
accordance with the law."
24) An appeal is provided to the District Court also
against the orders as per Section 13. A certain finality is
attached to the notification under Section 15 after this
procedure is followed. Rights are also extinguished if they
are not claimed as per Section 16. However under Sec.23 of
the Act the power to de- notify the area designated as a
Reserve Forest is given to the State.
25) A reading of the counter affidavit and the documents
filed do not show that this procedure so meticulously
stipulated under the Act and rules was actually followed.
The manner in which the initial Section 4 notification was
finalized and published or the supporting data for the same
is not all disclosed .This is particularly important as the
petitioner's case is that this 111 acres was never notified by
the Forest Department. How the boundaries are determined
/ fixed in this Section 4 Notification is not at all clear.
Details of the procedure commencing with the service of
notices under Section 6 and culminating in the Section 15
notification are not at all disclosed by the respondents in
the course of their counter affidavit. No proof is forthcoming
to show that the detailed procedure for service of notices etc
was followed either after the 1970 (first) notification or the
1982 notification (second notification).
26) The document at page 243 of the paper book is a letter
dt.30.06.1974 which says that proclamation was affixed on
the notice board of the Taluk office only. Document at 240
for Navepothavaram says that the notification was affixed to
the notice board only. So is the case with the document
dt.19.01.1985 at page 236.
27) The importance of this notice, the procedures and the
consequences were noticed in a judgment reported in
Mysore Balakrishna Rao v The Secretary of State of
India in Council, represented by the Collector of
Cuddappah5 where it was held as follows:
"Under Sect. 6 he is required, besides publishing
notices calling for claims at the Head-quarters of
each Taluq in which any part of the land is situated
and at every Town and Village in the neighborhood
of such land, to serve special notice to the same
effect on every known or reputed owner or occupier
of any land included in or adjoining the land
proposed to be constituted a reserved forest, or his
agent, or manager; and it is not disputed that the
plaintiff, as the registered Inamdar of the village in
which the suit land was situated, should have received
notice under this section. It should also be stated that
there is no evidence that the steps which were
being taken under the Act came to the knowledge
of the plaintiff until more than five years after the
issue of the proclamation under Sect. 6. In these
circumstances it is, I think, clear that the Forest
Settlement Officer, in the absence of the notice
required by the section, had no jurisdiction to make
any decision affecting the rights of the plaintiff."
(1915) 29 Mad LJ 276 = AIR 1916 Mad 789 (2)
28) The Forest Settlement Rules 1969 stipulate a detailed
procedure for the enquiry to be conducted by the Settlement
Officer. The procedure stipulated in Rules 3, 4, 5, 6, 9, 10,
11, 13, 14 makes it very clear that the Settlement Officer
has to function virtually like a civil court. Rule 15
stipulates the manner of maintaining a case diary. The
final order to be passed in case of a claim in land is
mentioned in Section 10 (2) (a) and (b) of the Act itself.
Section 8(2) states that the evidence should be recorded by
the FSO in the manner provided by the CPC 1908 in
appealable cases. The FSO thus has all the trappings of a
court and is bound to strictly follow the procedures and the
rules of natural justice too.
29) The procedure to be followed is so clearly stipulated in
the Act and the Rules since the decision taken by him has
very serious civil consequences including divesting a person
of his/her rights in property. The reason for this is - as per
the law of the land no person can be deprived of his
property except in accordance with a procedure established
by law.
30) If the case is examined against this backdrop of the
statutory/rule position, it is clear that there is no
record/evidence filed to show that all of this was done.
The counters are also very silent. The case of the petitioner
is that this Ac.111.03 cents of land was never notified at all.
In reply to this averment nothing is forthcoming from the
respondents to show that the procedures were followed in
this case leading to a divesting of the petitioners claim. The
FSOs letter dated 24.12.1970 addressed to the Tahsildar
(pages 229/230) also explains this procedure and its
importance. Apart from certificates from the village officers
he also asks the Tahsildar to get acknowledgements from
affected persons also. Yet not one acknowledgement is filed
to show that even one person/ryot/occupier was served.
This Court finds it hard to believe that for the entire 858
acres and its vicinity there is not one person or ryot who
would be affected either in the land included or the
adjoining land and is thus entitled to a notice.
31) Two other documents available on record are the letter
dt.17.06.1973 (page 238 of paper book) stating that the
Section 6 declaration is widely published in "all the
adjoining villages". The second is a letter dt.30.05.1974
(page 243) certifying that no objections are received within
six months (this is contrary to the notification which
prescribes one year).
32) This mistake of 6 months can be overlooked since
another notification was published under Sec 4 on
14.09.1982 setting out the Departments intention to notify
858 acres as a reserve forest. The certificates of publication
for this 1985 notification also talk of publication by affixture
only. No proof of service on any single individual is filed for
the entire 858 acres and three villages.
33) This Court also has to state that this is an
expropriatory legislation and thus it is to be strictly
interpreted. If the procedure stipulated between Sections 4
to 15 of the Forest Act is followed and completed, all the
rights on the land are deemed to have been extinguished.
In fact in this interregnum i.e., in between Sections 4 to 15,
no civil suit to establish a claim can be filed (Section 5), nor
rights can be acquired over the land except by succession or
by a prior contract or grant (Section 6). Only the Forest
Settlement Officer is authorized and empowered to decide
the claims and issues. Therefore, in the opinion of this
Court, there is a very strict duty cast upon the officials of
the Forest Department to scrupulously and meticulously
follow the provisions of the Forest Act and the Rules made
thereunder. There cannot simply publish the notice and/or
republish the same without any survey numbers,
boundaries and/or extents and state that the land is
proposed to be declared as a reserve forest area. After due
diligence a clear publication is to be made and then they
will have to serve notices etc on all the persons likely to be
affected including the occupier of the adjoining land,
consider the objections if any that are raised and then
decide the matter.
34) It is not in doubt that once a statute prescribes a
method for doing a thing it must be done in that method or
not all. This is a very well settled principle of law. For good
order the judgment in Shiv Kumar Chadda v MCD6 is
relied upon without further burdening the record.
35) The presence of two notifications with a gap of more
than a decade (1970 and 1982) compounds the problem.
No clear explanation is forthcoming for this second Section
4 notification. Even more interesting is that after the second
Section 4 notification the follow up notifications do not
appear to have been issued. No proof is filed that the
second notification culminated in a declaration/notification
under Sec 15. In fact as per the letter dt.16.03.2009 of the
Head of the Forest Department himself the draft Sec.15
notification has been returned on 3-2-988 with a request to
furnish the survey number wise area to be included in the
reserve forest. This has not been done for 20 years.
36) It is thus very clear that the issue has thus not
attained any finality as the required notification under
Section 15 is still not issued.
37) The following passage from the judgment in Godrej
and Boyce Manufacturing Company Limited and
(1993) 1 SCC 161
Another v State of Maharashtra and Others 7 is very
relevant in these circumstances in this Court's opinion since
this case deals with a similar issue. Para 55 and paras 66 to
68, are reproduced-
"55. A notice under Section 35(3) of the Forest Act
is intended to give an opportunity to the owner of a
forest to show cause why, inter alia, a regulatory or
a prohibitory measure be not made in respect of
that forest. It is important to note that such a
notice presupposes the existence of a forest. The
owner of the forest is expected to file objections
within a reasonable time as specified in the notice
and is also given an opportunity to lead evidence in
support of the objections. After these basic
requirements are met, the owner of the forest is
entitled to a hearing on the objections. This entire
procedure obviously cannot be followed by the
State and the owner of the forest unless the owner
is served with the notice. Therefore, service of a
notice issued under Section 35(3) of the Forest Act
is inherent in the very language used in the
provision and the very purpose of the provision.
......
......
66. So also, in Santoshkumar Shivgonda Patil v.
Balasaheb Tukaram Shevale [(2009) 9 SCC 352 :
(2014) 3 SCC 430
(2009) 3 SCC (Civ) 749] it was held : (SCC pp. 356-
57, para 11)
"11. It seems to be fairly settled that if a statute
does not prescribe the time-limit for exercise of
revisional power, it does not mean that such power
can be exercised at any time; rather it should be
exercised within a reasonable time. It is so
because the law does not expect a settled thing to
be unsettled after a long lapse of time. Where the
legislature does not provide for any length of time
within which the power of revision is to be
exercised by the authority, suo motu or otherwise,
it is plain that exercise of such power within
reasonable time is inherent therein."
67. According to the State, a show-cause notice
was issued to Godrej in 1957 (and assuming it was
served) but no decision was taken thereon till
1975, that is, for about 18 years. This is an
unusually long period and undoubtedly much more
than a reasonable time had elapsed for enabling
the State to take a decision on the show-cause
notice. Therefore, following the law laid down by
this Court, the show-cause notice must, for all
intents and purposes, be treated as having become
a dead letter and the seed planted by the State
yielded nothing.
68. The entire problem may also be looked at from
the perspective of the citizen rather than only from
the perspective of the State. No citizen can
reasonably be told after almost half a century that
he/she was issued a show-cause notice (which
was probably not served) and based on the show-
cause notice his/her land was declared a private
forest about three decades ago and that it vests in
the State. Is it not the responsibility of the
State to ensure that its laws are implemented
with reasonable dispatch and is it not the duty
of the State to appreciate that the statute
books are not meant to be thrown at a citizen
whenever and wherever some official decides to
do so? Basic principles of good governance
must be followed by every member of the
Executive branch of the State at all times
keeping the interests of all citizens in mind as
also the larger public interest."
38) This court is compelled to hold that the failure to
follow the procedure is clear and striking. The statute book
cannot be thrown at the citizen and then the State cannot
pray that the writ should be dismissed. In view of these
cumulative failures to follow the procedure under the Act it
cannot be held that the parties rights are extinguished or
that the Reserve Forest is duly notified. In fact the final Sec
15 notification is not yet issued in this case.
COUNTER AFFIDAVITS:
39) Apart from this if the counter affidavits filed by the
respondents in this case are examined they make very
interesting reading but further compound the problem for
the respondents.
40) The 1st respondent agrees that in the Re-settlement
Register Ac.111-03 cents it is mentioned as South Valluru
Part-1 Estate Zamindar Garu and this is the name of the
pattadar. However, he submits that since no specific name
is entered in the RSR the land should be treated as
Zamindari land. He also asserts that possession of the land
immediately vested in the Government in the year 1949
after the Estate Abolition Act came into force. It is also
mentioned in para-4 of the counter affidavit that there is a
difference in mentioning survey numbers while issuing a
Notification under Section 4 of the Act and survey work is
being carried out jointly by the Revenue Department and
the Forest Department.
41) Coming to the adangals, it is mentioned that the mere
fact that the purchasers names are entered in the adangals
would not confer title and that the mistake will be rectified.
42) Further in page 9 of the counter affidavit it is
mentioned that during the notification the Forest
Department mentioned the Nizam dominion survey
numbers instead of Re-Survey Numbers. The process is
supposedly going on to rectify the error jointly by the Forest
Department and the Revenue Department. This counter
affidavit was filed in 2010.
43) The 2nd respondent has also filed his counter affidavit.
This was verified in October, 2009. In page No.2 of the
counter affidavit it is mentioned that a joint inspection was
conducted with the Forest Department, Survey Department,
Mines and Geology Department and Revenue Department
and the issue is still pending with the higher authorities. In
paragraph-4 at page 3 of the counter affidavit the deponent
states that the entire Ac.858-00 cents is notified under
Section 4 of the Forest Act, but the Gazette Notification does
not specify the details of the survey numbers. Therefore,
there is no clarity with regard to the survey numbers
claimed by the writ petitioners as to whether it is a private
land or notified land. Ultimately, in paragraph 5 it is stated
that once the dispute is cleared and the classification of the
land is informed to the office of the Sub-Registrar the
pending document would be processed in accordance with
the Stamp Act and the Registration Act.
44) The 3rd respondent -Divisional Forest Officer has filed
his counter which was affirmed in June, 2010. In his
counter it is mentioned as follows:
"The south Valluru zamindar has handed over 716.11
acres of the land to the Government during 1949. The
Government has handed over the lands to the Forest
Department on 15-10-1951. The said sy.no.86 is a part
of the estate of South Valluru zamindar and is in
possession of Forest Department since 15-10-1951
without any interruption. The whole confusion has
arisen due to mentioning of Nizam Domain Sy.nos. in
forest records. It is submitted that the 716.11 acres of
land belonged to the following sy.nos. of the Nizam
Domain.
R.S.No. Extent in Acs.
1/1 128.95
1/3 3.12
3/1 143.48
5/3 4.93
20 3.21
22 202.56
99 229.86
Total: 716.11
It is submitted that the Nizam Domain nos. were
changed and new survey numbers were assigned.
Subsequently these survey numbers were also changed
and new survey numbers were assigned by Revenue
Department.
It is submitted that the lands mentioned in the Writ
Petition were originally belonging to Nizam's domain
situated in Sy.No.99 of Kethanakonda Village,
Bezawada Taluk. Thereafter the said land was
resurveyed by the Settlement authorities and new
survey numbers were assigned as Sy.No.77, 67, 74, 75,
76 and 66 of Navapothavaraqm village. Again resurvey
was conducted by the Survey and Settlement
Department during the year 1928 and the subject
lands were assigned survey numbers as 84 ,85, 86 and
87 of Navapothavaram Village of Bezawada Taluk. It is
submitted that originally a total of 229.86 acres of
survey number 99 of Kothanakonda Village of Nizam's
domain was taken over by the Government and handed
over to the Forest Department. Subsequently this area
was assigned Sy.Nos.77, 67, 74, 75, 76 and 66. Again
the Sy.Nos., were changed as Sy.No.84 ,85, 86 and 87.
The correct position is as follows:
New Corresponding Old Corresponding Area
Sy.No. Sy.No. Nizam Domain
Sy.No.
84 77 99 85.56
85 67 99 29.39
86 74 and 75 99 111.03
87 76 99 1.07
87 66 99 1.38
Total: 229.86
Acres
The petitioner is claiming 111.03 acres corresponding
to new sy.no.86 which is corresponding to old sy.no.74
and 75 which was earlier a part of sy.no.99,
surrendered by the south Valluru Zamindar under
Estate Abolition Act 1948. The petitioner is trying to
take advantage of confusion caused by new sy.nos. As
seen supra, these 111.03 acres land is part of the area
under control of the Forest Department since last 60
years."
45) In page No.5 it is stated that the initial proclamation
was given on 14.05.1970 under Section 4 of the Forest Act.
Thereafter under Section 6 of the Forest Act a proclamation
was given on 04.03.1971 and it is clarified that the same
was affixed in the Taluq Head Quarters of the Vijayawada on
20.06.1971 and also in the village of Kondapalli,
Kethanakonda and Kotikalapudi.
46) Due to some mistakes it is stated that a Section 4
Notification was again published in the District Gazette on
14.09.1982 and the extent of land was shown as Ac.858-00
cents.
47) A reading of these three counter affidavits, which are
filed by responsible officials holding high offices, clearly
show that there are patent errors occurring at every stage.
They admit that instead of survey numbers "domain"
numbers were mentioned but no documentary proof is filed
either for the Nizam Dominion numbers, the new survey
number or the resurvey numbers. No correlation data is
filed. Details or the conclusions of the surveys mentioned
are not clearly furnished. The reason or reasons for a fresh
notification etc are again not spelt out. It is settled law that
mere pleading cannot take the place of proof.
48) DOCUMENTS:-
(a) A Joint Inspection Report is filed pertaining to a
review meeting held on 04.08.2007, filed at page No.85 of
the paper booklet. Point No.1 (4) shows that R.Sy.No.86
measures Ac.111.03 cents, Point No.3 shows that Forest
Department fixed its carens in the patta lands. It is also
mentioned that the Forest Department has wrongly fixed the
carens in Sy.Nos.61 to 70. Point No.5 states that the above
mentioned carens should be changed and gazette
publication is to be issued. In Point No.6, it is also
mentioned that there is a difference between survey
numbers. In point No.8 there is a specific reference to
R.Sy.No.86 an extent of Ac.111-03 cents of land. It is
mentioned that the Forest Department has to mention to
what extent of the area they have fixed the carens in the
ground. In Point No.10 it is mentioned that the present
survey numbers have to be specified in the resettlement
register.
(b) Letter dated 18.02.2017 (page 362). This is a
letter addressed by the Tahsildar to the Sub-Collector. It
also refers to a Joint Inspection for fixing the boundaries of
the forest and revenue lands. Under the heading "Several
Aspects observed by Revenue and Forest Departments" in
Point No.2 at page 5 of this latter (paper book page 366)it is
clearly mentioned that even though the said extent of
Ac.111-03 cents was not included in the Forest notification,
the department has wrongly imbedded carens and included
the extent in their Notification map of the Forest
Department. Another annexure to this letter is the actual
Joint Inspection Report. At page No.2 of the report (Page
No.345 of the paper book ) the following is mentioned:
"The Forest Carons bearing numbers 49, 50, 57 to 81
that are intended to be embedded on the Western side
of the above mentioned Western boundary Re-survey
number 114, 115, 116, 118, 121, 122, 123, 126 were
embedded by mistake in the Patta lands bearing Re-
Survey numbers 114, 115, 116,, 118, 121, 122, 123,
126 and in the Eastern portion of Re-Survey Number
86."
Both the documents clearly state carens were erected in
"patta lands".
(c) Letter dated 10.03.2017. (page 370) This letter
is addressed by the Sub-Collector and in-charge Forest
Settlement Officer to the District Collector, Krishna and at
page 3( No.372 of the paper book) and the following is
mentioned:
"It is noticed that, as per the RSR of the
Navepothavaram village, which was prepared in the
year 1932, the survey number 86 is a rythuwari patta
land and the notification on southern boundary runs
adjacent to survey no's 86 and 126 of Navepothavaram
and Zami Navepothavaram. Forest block proposals
were prepared basing on the survey made in A.P. Forest
Act (Andhra Area) i.e., Madras Forest Act 1882. As per
section 3 of Madras Forest Act, only lands at the
disposal of the Government are to be notified under
Forest Act After observing these points there is no
chance to include the survey number 86 in notified
area of Navepothavaram forest block and also the
boundary description of Navepothavaram forest block
limited the area for 858 acres confirms the same. In
view of the circumstances, revised boundary
descriptions with geo coordinates without baring and
distances have been prepared and submitting herewith
for publication of the errata notification to the section-4
of A.P. Forest Act in respect of Navepothavaram Forest
Block for 858.20 Acres (or) 374.41 Hectares."
(d) A Joint Inspection Report dated 23.06.2017,
(page 302 of paper book) regarding the findings of inspection
conducted on 16.06.2017. In conclusion an errata proposal
submitted by the Forest Settlement Officer basing on Joint
Survey conducted by Forest, Revenue and Survey officials
may be considered for further action. This was forwarded
on 10.07.2017 by the District Collector to the Chief
Conservator of Forest.
(e) Letter dated 26.01.2018.(page 324) This letter
was addressed by the Divisional Forest Officer, to the Chief
Conservator of Forests and a point wise reply was given to
the various issues raised. In point No.4 it is mentioned that
Survey No.86 (Old No.99) is not included for the reason that
it is not part of the proposed Navepothavaram forest block.
It is a settlement patta as reported by the Sub-Collector in
his report dated 10.03.2017. An errata is proposed for
publication as per Sec 4 of the Act.
(f) Letter dated 15.02.2018.(page 380 paper book)
This letter was addressed by the Divisional Forest Officer to
the Chief Conservator of the Forest, Rajahmundry Circle. In
point 1 the error in the boundary between Navepaotavaram
and Kondapalli R F on the ground , is mentioned. With
regard to the point Nos.3 and 4 the following is stated:
"3. Whether any Rytuwari patta was issued under
section 11(a) of E.A. Act, 1948 in respect of the land
mentioned in the Sy No.86 of Navepothavaram village.
It is submitted that Sub Collector & Forest
Settlement Officer (1/c) in his report Re No.916/72B
Dated 10-03-2017 reported that the area in Sy No.86 is
a Rytuwari patta. It is further submitted that EA. Act,
1948 does not apply in respect of this patta since
Navepothavaram village is not Zaminadari village, it is
Government Revenue village.
It is further submitted that after enactment of the
Estate Abolition Act the Government handed over 716
Acres to the Forest Department on 15-10-1951 for
further management. Thereafter Section 4 proposals
were submitted for 858 Acres.
4. Whether any claim petition was received by the Forest
Settlement Officer in respect of Sy No.86, if so the details
thereof along with recommendation of FSO may be
furnished.
No section 15 proposals were prepared in full shape.
There are no details regarding claims information in
this office records."
(g) In Point No.5 while dealing with the counter filed
in the present Writ Petition the following is mentioned:
"......
It is further submitted that the counter was prepared
based on P/Number (Dominion Number), Sy. Number
and R.S. Number with reference to the map prepared
with reference to bearings & distances which is not
correlated with map with reference to description
portion. Hence it can't be agreeable at present. The
contention of our department in the counter affidavit is
completely based on map not with reference to ground
features. Further it is submitted that the RS No.86 is
patta land in Revenue village, it is not part of Zamindar
lands. In Resettlement Navepothavaram village RS Nos.
1 - 87 are of Revenue village and 88-180 are estate
lands. Estate lands handed over to government under
E.A. Act provision i.e., 88 - 180 and not RS No.86.
Thereby the RS N.86 is in Revenue village as per RSR
and 88 - 180 are estate lands as per fair adangal.
It is further submitted that section-4 notification is
merely intention of the Government to constitute
certain land as reserved forest. The area proposed in
section-4 Notification may be altered till Section-15
Notification is confirmed. The following is a case law in
the context. "the notification under section-4 cannot
take the place of notification under Section 20, as the
notification under section 4, merely indicates the
intention of the Government to constitute certain land
as reserved forest. Mansed Oragons vs. The King, AIR
1961 Pant 380; 31 PLT 128,"
(h) As far as "facts to be noticed for errata
publication of Navepothavaram Forest block" the following is
mentioned:
"Some facts to be noticed for errata publication of
Navepothavaram Forest Block:-
In the Navepothavaram forest block, there are 22 and
99 "D" Numbers (Nizam Dominion numbers) towards
south western side, which were included in the
notification. These "D" numbers were reclassified as
Revenue survey numbers in the year 1927 after its
resurvey as R.S.R. In this process, the "D" numbers 22
was renamed as R.S.No,83 and "D" number 99 was
renamed as R.S.Nos 84, 85 and 86 in the year 1927
itself.
As per the boundary description 22 and 99 portion of
"D" number were included into the notification, i.e.,
R.S.No.83, 84 and 85 were included in the notification
and excluding R.S.No.86 in the revenue itself, which is
a patta land. Till today, the notification was recognized
with "D" numbers only without considering the
Resurvey numbers which is an error. Even though
Resettlement was carried out in 1921 for Revenue
village and in 1958 for: Zamindari village, the reason
for mentioning old D.Nos in notification is not
forthcoming.
There are two villages, i.c., Navepothavaram and Zami
Navepothavaram villages. Navepothavaram is a revenue
village and Zami Navepothavaram is a Zamindari
village. These two are of two different natures. During
Estate Abolition Act, 1948 Zamindari lands were
abolished and some of such abolished lands which
were under the control of Revenue department were
notified as "Forest". The Zami Navepothavaram lands,
which were notified under "forest" were towards the
eastern side of notification and Navepothavaram lands
were towards the western side of notification.
It is further submitted that during the process of
notifications in the past years, it was identified by only
"D" numbers as 22 and 99 portion was taken into
consideration even though those numbers were
renamed as Revenue Survey Numbers in the year 1927.
Moreover during its notification process, no field work
was done to identify the cairns of Kondapali Reserve
Forest which is a common boundary to
Navepothavaram Forest Block. (The same was recorded
as NB: at the end of the Notification). Now during the
joint inspection we could locate those Kondapalli RF
cairns without any deviation. Due to this mistake,
some of the lands towards northern side were left off,
and to meet the shortage area as per notification, some
of the patta lands, which were private in nature and
out of forest notification were included ic., R.S.No.86.
The Forest Settlement officer, Krishna and west
Godavari has verified the field and also given
clarification regarding RS No.86, that as per section 3
of Madras Forest Act, (i.e., process of notification was
started in 1963) only lands at the disposal of
Government land to be notified under Forest, and
hence there is no chance of including R.S.No.86 in the
notified Area.
Moreover, there are some court cases pending in
Novepothavaram Forest Block that the petitioners claim
those have pattadar pass books using R.S.Nos from the
revenue department. The department contesting with
old "D" numbers without considering RS Nos and FLR.
Hence without errata with new numbers, it is highly
difficult to contest in court cases.
As mentioned earlier, the notification with distances
and bearings are also wrong and it has a closing error
as the map closes at station No.7 instead of station
No.1."
48) It is thus clear from a reading of all these documents
that patent errors have occurred at various stages. The
letters mentioned above are all addressed by officers with
the knowledge of the ground reality.
49) It is also interesting to note that even as late as in
2017/2018 recommendations are being made for an errata
notification for commencing the procedure under Sec 4 of
the Act itself. This Writ is of the year 2009.
ADDITIONAL AFFIDAVITS :
50) This Court also notices that I.A.No.1 of 2019 was filed
by the petitioner to file certain additional material papers
etc. Counters to this were filed by an officer of the rank of
Special Chief Secretary in January, 2020.
51) The counter affidavit filed the Special Chief Secretary
raised very interesting contentions. He submits that
adangal has no evidentiary value. He also takes the plea
that the 1962 document executed by the Zamindar is
defective and that the adangal issued by the Tahsildar is a
product of fraud. Similarly, with regard to the report of
Assistant Director of Survey and Land Records he
condemns the report by stating that the same is contrary to
the provisions of Survey and Boundary Act and that
Assistant Director of Survey for extraneous considerations
has issued the said certificate. (A perusal of the certificate
dated 18.05.2000 (page 83) reveals that the officer merely
mentioned the details as per the RSR and the subsequent
sale. He states that the assessed tax is being paid by the
purchaser).
52) The deponent also mentions that the Joint Survey
conducted on the application of M. Nagabhusan Rao is also
incorrect. He condemns the letter of the Sub-Collector,
Vijayawada, dated 10.03.2017 also. He states that the
concerned revenue, forest and other officials are hand-in
glove with the writ petitioner. Therefore, an enquiry by Anti
Corruption Bureau (ACB) is necessary according to him.
The letter of the Sub-Collector, dated 10.03.2017, is also
said to have been withdrawn in view of the conclusions
reached in the meeting of the Chief Secretary, dated
22.08.2019 (which is long after the filing of the writ
petition). To the same effect is the additional counter
affidavit.
53) This Court notices that except for stating fraud/hand
in glove action etc., no concrete action appears to have been
taken by the respondents on any of the reports or the
officers concerned. If at all the State was of the opinion that
all the records and reports or recommendations relied upon
or mentioned above are incorrect and are the product of a
nexus (either unholy or otherwise) they should have
initiated action immediately after they came to the said
conclusion . The very fact that no action was ever initiated
against any of the officials makes it very clear that all these
pleas are a mere afterthought. Even otherwise a bald
allegation of fraud or of some alleged nexus without clear
and categorical details of the same cannot be accepted by a
Court of law. The pleading of the alleged
fraudulent/wrongful action should be clear and the proof
should also be clear and categorical. The material available
with the State to come to these conclusions is not disclosed
or pleaded. In the absence of any such details, this Court is
of the opinion that the post litigation statements made by a
Special Chief Secretary in the course of his counter affidavit
cannot be accepted and are rejected as post litigation
afterthoughts.
54) The absence of any proof whatsoever in support of
these grave allegations is also strikingly clear.
Law on the Subject -
55) The law on the subject is also well settled. By a
cumulative effect of the declarations under the Forest Act
the State will deprive a person of his right in property. In
such cases as mentioned earlier the statutory mandate
should be scrupulously and strictly complied with. It is also
an expropriatory legislation and hence it must be strictly
interpreted. Paragraphs 14 and 15 the Judgment reported
in Sukh Dutta Ratra v State of H.P.8 are considered
relevant and important. They are reproduced here.
"14. It is the cardinal principle of the rule of law,
that nobody can be deprived of liberty or property
without due process, or authorisation of law. The
recognition of this dates back to the 1700s to the
decision of the King's Bench in Entick v. Carrington
[Entick v. Carrington, 1765 EWHC (KB) J98 : 95 ER
807] and by this Court in Wazir Chand v. State of
H.P. [Wazir Chand v. State of H.P., (1955) 1 SCR 408
: AIR 1954 SC 415] Further, in several judgments,
this Court has repeatedly held that rather than
enjoying a wider bandwidth of lenience, the State
often has a higher responsibility in demonstrating
that it has acted within the confines of legality, and
therefore, not tarnished the basic principle of the
rule of law.
15. When it comes to the subject of private property,
this Court has upheld the high threshold of legality
that must be met, to dispossess an individual of
(2022) 7 SCC 508
their property, and even more so when done by the
State. In Bishan Das v. State of Punjab [Bishan Das
v. State of Punjab, (1962) 2 SCR 69 : AIR 1961 SC
1570] this Court rejected the contention that the
petitioners in the case were trespassers and could be
removed by an executive order, and instead
concluded that the executive action taken by the
State and its officers, was destructive of the basic
principle of the rule of law.
56) If the actions of the respondents are examined against
this higher threshold of legality that is prescribed by the
Hon'ble Supreme Court of India, this Court is of the firm
opinion that the respondents have totally failed to satisfy
the Court in this aspect. They are attempting to deprive a
person's rights in the property without following the due
process. Even as on date it is clear that there is no finality
attached to the issue. The recommendations for publication
of errata and for conducting a resurvey have been pending
since 2007 onwards till 2017/2018. After the first writ
petition was allowed the Divisional Forest Officer by his
order dated 30.03.1998 said that the Forest Department is
not the competent department to conduct the survey. Even
thereafter no finality has been achieved. The first Sec.4
notification was on 09.06.1970, the second Sec.4
notification was on 14.09.1982 and thereafter also the
officers are recommending errata publication for the same
Sec.4 notification once again. At the risk of repetition it is
stated that the Sec 4 is the initiation of the process and is
an expression of intention by the State to declare a certain
area as a Reserve Forest. This stage itself has not been
crossed so far after 53 years (1970 to 2023). By any stretch
of imagination this cannot be said to be a reasonable period
to finalize / conclude the issue. Following Godrej and
Boyce Manufacturing Co. Ltd., case (7 supra) this Court
has to hold that the Section 4 Notifications are virtual dead
letters.
57) If the impugned letter, dated 16.03.2009, is also seen
it is clear that the Principal Chief Conservator himself has
found a number of errors. In page No.2 of this letter the
following is mentioned.
"The Forest Settlement Officer had submitted U/s.15
notification which was returned vide PCCF reference
No.108733/97-J1, dt. 03.02.1988 with a request to
furnish the survey No. wise area to be included in
Reserve Forest. The Conservator of Forests has failed
to furnish the information in last 20 years.
The Sy.No.wise information furnished by Tahsildar,
Ibrahimpatnam vide his Ref.No.77/20003
dt.22.01.2008, does not tally with the survey No.wise
details at the time of notification U/s.4 and hence
cannot be agreed.
Therefore, the Chief Conservator of Forests Rajahmundry
is requested to examine the whole case in detail."
58) He again directed the Chief Conservator, Rajahmundry
to request the revenue officials to survey the entire
"Ac.1292.81" cents by mentioning 7 points in page 2 After
the said survey is done he directed that the map of the area
notified under Section 4 of the Forest Act should be
superimposed to trace the survey numbers of the block. In
the opinion of this Court, this will lead to further litigation.
The two Notifications under Section 4 of the Forest Act
contain many defects as can be seen from the documents
and the further recommendations of the officers and also
the contents of this letter itself. The procedure stipulated
has also not been followed for inviting the objections etc.
More than one survey report has pointed out the errors. In
that view of the matter, this court is of the opinion that
superimposing the survey number on the notified area
under Section 4 of the Act is not correct.
59) During the course of the hearing a report of a study
conducted by A.P. Space Application Centre (an A.P
Government Department) report has been filed. An
overlaying analysis of the four maps supplied shows 3 to 4
clear and categorical differences in the boundaries / areas.
This is visible from page 12 of the report which is
pictographically reproduced hereunder. This document, in
the opinion of this Court, supports the contentions of the
petitioner that a survey and superimposition of the map is
not a solution to the problem.
PETITIONERS CASE - vis-à-vis DOCUMENTS FILED:
60) Apart from the admissions in the documents which
are mentioned in the earlier part of the order, the petitioners
rely upon the Re-settlement Register (RSR) of the Nave
Pothavaram village dated 22-8-1932 (filed at page No.184 of
the paper book) to assert their title. Learned senior counsel
points out that new Sy.No.86 is the old Sy.No.74 and 75.
By relying upon the columns 8, 9 and 10 of the RSR at page
No.188 of the Re-settlement Register, Learned counsel
argues that this Ac.111.03 cents is assessed to tax and tax
payable is Rs.124.15 annas. The name of the pattadar is
mentioned in Column No.10 as South Valluru Part-1 Estate
to Zamindar.
61) In addition, learned senior counsel relies upon the
'Descriptive Memoir' of Navepothavaram, filed at page Nos.
194 to 196 of the paper book. This is also dated
22.08.1932. Column No.6 deals with ryotwari holdings.
Holdings are classified on the basis of tax that they are
assessed to pay. In the column, in "total Rs.250 and less
but over Rs.100", there is one holding measuring Ac.111.03
cents and it is assessed to tax at Rs.124-15 annas. These
two documents are relied upon in support of the
submissions that land is recognized as private land and that
it is assessed to tax that Rs.124.15 annas. The name of
South Valluru Part-I Zamindar is also shown in Column
No.10 as pattadar. This classification of the land and its
assessment to tax is strongly relied upon by the learned
senior counsel as indicative of the fact that the land is
private ryotwari land and hence assessed to tax. As a
corollary it is urged that the land could not be taken over
under the provisions of the Estate Abolition Act 1948; as it
is the private land of the Zamindar. It is asserted that the
Estate Abolition Act was enacted to abolish the Zamindari
system, to abolish the intermediary and to bring the State in
direct contact with the peasant/ryot. But in this case the
land is assessed to tax long before this act since it is private
land and not part of the Zamindari.
62) It is also important to note that these are official
documents prepared by the Special Settlement Officer and
published by the State itself .In the court's opinion Sec 35
and Sec 114 (e) of the Indian Evidence Act come to the
petitioner's aid in these circumstances. Nothing to the
contrary had been filed by the State to dispel these
submissions or the contents of these documents.
63) As per the judgment reported in G.Satyanarayana
and others v. Government of Andhra Pradesh, rep., by
its Secretary, Revenue Department and others9, the Re-
settlement Register (R S R) is a fundamental document in
the Revenue Administration which carries a certain
evidentiary value.
64) The following paragraphs of the judgment are
important:
"60 (i) Settlement Register: This register is also
termed as Diglot or 'A' Register. It is the
foundation on which the whole revenue
administration rests. It forms complete recording
of accurate information as to whether it is
Government or inam land, dry, wet, unassessed
or poramboke, source of irrigation, class and sort
of soil, taram, rate per acre, extent etc. It records
every separate holding, whether large or small.
The area is given in acres and cents and the
assessment thereon stands in parallel columns. If
a single field on the survey map is divided among
ryots, a special letter is allotted to each ryot with
a separate line giving full particulars of his
holding.
60 (iii) Memoir and village maps: This memoir is
prepared in English giving full description and
details touching each village and its settlement
and an account of all lands held revenue rent free
2014 (3) ALT 473
or on favorable tenure is also printed. A sketch
map of the village showing the tanks and
channels and all similarly assessed fields laid out
into blocks is attached to it. It is an index to the
Field Measurement Book (FMB).
137. Conclusion on Point No.1(a) and (b)
........................................................................
(iv) In respect of estate and inam lands, ryotwari
pattas/occupancy rights certificates constitute
title. In case of protected tenants under the
Hyderabad Tenancy and Agricultural Act 1950,
the protected tenants having ownership
certificates hold absolute title.
(v) In the absence of patta, revenue records form
the basis for determining title. A-Register / Diglot
and Ledger/Chitta in Andhra Area and Sethwar,
Supplementary Sethwar and Wasool Baqui in
Telangana Area are the basic settlement record
which provide basis for subsequent entries in the
Village Accounts. Before integration of revenue
record, No. 1 and No-.2 Accounts (old), No.3
Account, No. 10 Account and Register of Holdings
in Andhra Area and Pahani patrika, Chowfasla,
Faisal Patti and Khasra Pahani in Telangana Area
are relevant Village Accounts for determination of
title. After integration of the Village Accounts
under the 1971 Act, (i) Printed Diglot or A-
Register, (ii) Village Account No. 1, (iii) Village
Account No. 2, (iv) No. 3 Register and (v) Village
Account No. 4-Register of Holdings constitute
relevant record.
(vi) Between two rival claimants relying upon the
entries in revenue record, the person whose name
is recorded in the basic records such as A-
Register and Record of Holdings and their
successors-in-interest will be considered as the
rightful owners. In deciding such disputes, the
revenue authorities and the courts need to
carefully weigh the evidence relied upon by the
rival parties with reference to the record referred
to hereinbefore. Even in cases of disputes
between the Government and private persons, the
above referred record constitute material evidence
in determination of title.
150. What is discernible from these provisions is
that all lands other than 'estate lands' are treated
as Government lands irrespective of whether they
were in occupation of ryots and whether pattas
were granted to them or not. In other words,
Jirayati land as mentioned in Column No. 2 of A-
Register/Diglot/Sethwar is termed as
"Government land" in the RSR. It would therefore
be a travesty of reality if the Government assumes
that by mere description of the land as
"Government" or "Sarkari" in column Nos. 4 or 5,
as the case may be, in the RSR, the land belongs
to and vested in it. If the literal meaning of the
phrase 'Government land' is to be ascribed to the
said column, then, the column pertaining to
'Name of pattadar or inamdar' would be rendered
nugatory. The correct way of understanding the
term 'Government land' in the RSR is that it takes
into its sweep all lands including patta lands and
those in possession of private persons other than
the inam lands. If the pattadar column shows
the names of pattadars they are private lands
belonging to the persons named therein or
their successors in interest. (emphasis
supplied)
65) These passages of this reported judgment support the
case of the petitioner. This is the record of a settlement
operation of 1932 which in many ways is the basic
document available in the Revenue Administration of the
State. As mentioned earlier nothing to the contrary has also
been filed by the State.
66) This Court also notices that at page No.450 of paper
book there is a joint survey report and review of the meeting
held in the office of the District Collector on 04.08.2007
regarding the deciding the boundaries of the Forest and
Revenue in Sy.Nos.83 to 86 of Nave Pothavaram village.
Para-1 deals with various extents and R.S.No.86=111-03
cents and it is mentioned as land of South Vallur Part-1
Estate of Zamindar. It is mentioned that Forest carens are
partly fixed in Sy.Nos.85 and 86 and that the carens were
wrongly fixed in Sy.Nos.61 to 70. In para 5 it is mentioned
that when the above mentioned carens are changed the
gazette publication should be issued. There is also a
difference between the survey numbers mentioned in the
Gazette publication and present R.Survey numbers. In
paragraph 8 it is clearly clarified that since the R.Sy.No.86
is Ac.111-03 cents of South Valluru in part-I happened to
be "declared as the land of the Zamindar", the Forest
Department has to declare in the Notification as to what
extent of the area they fixed the carens in the ground. Para
10 talks of the need for mentioning the present survey
numbers. Thus the respondents realize the need for a re-
look at the issue. This document and its contents also
support the petitioners' case. It is clear that from 1932 this
fact situation held good.
67) Other documents are also considered in the earlier
part of this judgment which show that this classification of
the land of Ac.111.03 cents as the Zamindars land has been
in the notice of the authorities since long.
68) Respondents' further submission is that the
petitioner's predecessors should have applied for a patta
under the Estate Abolition Act after the abolition of the
Estate is also not acceptable for the reason that the land is
already classified as the private land and is assessed to tax.
The document filed is a record of the settlement operations
in 1932 which is much prior to the Estate Abolition Act of
1948. This land is shown as Ryotwari land and in column
10 of the RSR titled - "number of patta or title deed and
name of registered holder or inamdar" - the zamindars
name is clearly mentioned. No contrary evidence etc is
produced to rebut these entries. Hence this Court has to
hold that the land is the land of the zamindar outside the
estate /zamindari and was separately assessed to tax much
before the 1948 Act. This Act applied only to Estates and
the land outside the estate would not be affected by this act
These are personal properties of the Zamindar and are thus
outside the purview of the Estate and the Act .Consequently
they do not also vest in the Government under Sec 3 of the
Act. Paras 60 and 150 of the judgment in G Satyanarayana
also support this conclusion.
69) The Respondents claim that the Estate held by
Zamindar was notified U/s 1(4) of the EA Act, 1948 on
17.01.1950 and thus all the lands of the Zamindar vest in
the State. However, a reading of the notification (Pg 155)
shows the following:
"South Vallur Estate - Part I, consisting of eleven villages
in Bandar taluk and five villages in Vijayawada Taluk in
Krishna District ( This is also a notice under the Madras
Survey and Boundaries Act and not a notice under the
1948 Act or the earlier Act)"
The second notification is dt.15-8-1950 (page 157)
under 0the 1948 deals with taking over of NORTH
VALLUR EAST and WEST and SOUTH VALLUR PART 2
(at 159)."
70) These notifications do not state with clarity if the Nave
Pothavaram village was notified. It is not clear which villages
were actually notified. Only Part-I and Part 2 is notified and that
too without naming any of the eleven/five villages in Part 1.
Same is the case with North/South Vallur. The petitioner's
specific case is that this land was never notified. The
respondents did not file any proof to show that this Ac
111.03 cents was a part of or covered by either of the two
notifications under the 1948 Act. The respondents have not
chosen to file any document to show that this 111.03 was
actually notified and that consequently it vested in the
Government. The 1948 Act provides a clear procedure for
the ryotwari settlement, taking over the estate, including the
survey of the estate, assessment of the land revenue, the
payment of compensation (interim and final) etc At the core
of this activity is the Survey and Settlement of the Estate to
determine all these issues. Nothing is filed to show that this
extent of land (111.03) was part of the Estate taken over,
that it was localized in the Survey or that it was considered
to finalize the assessment /settlement etc. In addition it is
noticed that the counter filed by the 3rd respondent states
in para 3 that "this land" was handed over to the
Government by the Zamindar in 1949 itself which is before
the two notifications mentioned above. In turn this was
supposedly handed over to the Forest Department in
October 1951. Neither of these is supported by any record.
Both the taking over and handing over must be borne out
by record but nothing is filed. The specific case of the
petitioners as is evidenced by para 2-5 of the reply affidavit
and elsewhere is that this land measuring Ac.111.03 cents
was never notified either under the Estate Abolition Act
1948 or the Forest act. In the light of all of the above and
the admissions which are not controverted or disputed
effectively this Court has to hold that this land of 111.03
was not notified under the 1948 Act or the Forest Act.
71) In addition there is a referred sale deed of 1962,
subsequent sale, entry in 10(3) account dt.8-7-2021
showing the land as patta land and the admissions of
officers of the State in various documents which also lend
support to the petitioner's case that this Ac.111.03 cents is
private patta land.
CONCLUSIONS:
72) This Court holds that the mandated statutory
procedures under Sections 4 to 15 of the Forest Act read
with rules thereunder have not been followed. The Section
4 notification should give clear details of the land proposed
to be notified. It is not an empty formality. Thereafter,
notices should be served strictly in accordance with the said
Section 6 (2) and the Rules framed thereunder on every
person named therein. Failure to do so has vitiated the
Notification under Sections 4 and 6 of the Forest Act and all
the further /consequential actions. Since the Forest Act in
Sections 4 to 15 prescribes the procedure which will
deprive a person of his rights in the land, the prescribed
procedures in the sections and the rules should be
scrupulously and methodically followed without even the
slightest deviation.
73) A methodical survey with the assistance of the
Government records pertaining to the area and the revenue
officials should be conducted before a Notification under
Section 4 is issued by the Forest Department. Merely
because the Section authorizes the authorities to give a brief
description, it does not mean a 'vague' description of the
proposed area to be notified would suffice. The notifications
should contain sufficient details of the land, extents
proposed to be notified with Survey numbers etc., since this
notice is akin to a 4(1) notification under the Land
Acquisition Act. Thereafter, the notices must be served as
mentioned in the Act and the Rules. The enquiry should
also be strictly as per the Act and the Rules. The record of
the enquiry must also be carefully maintained. A failure at
any stage can lead to the entire action being held to be
unlawful. This has actually happened in this case.
74) In view of the cumulative failures noticed in this
matter, which are both legal and factual, this Court is of the
opinion that the land of an extent of Ac.111-03 cents in RS
No.86 of Nave Pothavaram village in Ibrahimpatnam
Mandal, Krishna District is not notified as a Forest Area and
that the respondent State and/or the Forest Department do
not have rights over the same. The petitioners' claim over
this land is upheld. The R.S.R.; the admissions in various
documents etc., led this Court to this conclusion. The
respondents are also directed not to interfere with the
petitioner's possession and enjoyment of this land of Ac
111.03 cents. Prayer 2 is granted.
75) The impugned letter dated 16.03.2009 itself requests
the Chief Conservator of Forests to get a survey done with
the revenue authorities of the entire area (Ac.1292.81
cents). This Court also notices that there are serious issues
about the boundaries of the land, errors in the surveys,
adoption of Nizams dimensions, survey numbers, failure to
note re-survey numbers etc., as mentioned at various places
in the material/pleadings before this Court. Requests for re
survey etc are visible at various places and at various times.
76) There is a claim for 111.03 acres from the petitioners
while the Forest department is claiming 858 acres as a
reserve forest. The correct extents of these lands have to
be clearly localized and separated on the ground. The
boundaries need to be fixed with certainty and clarity. The
final notification under Section 15 also must be definite and
specific. It should specify according to the boundary marks
or otherwise the limits of the Forest.
"Section 15 -
......
the Government may publish a notification specifying
definitely according to the boundary marks erected or
otherwise, the limits of the forest which it is intended to
reserve and declaring the same to be reserved from a date
to be fixed by such notification and from the date so
fixed, such forest shall be deemed to be a reserved forest.
(2) Copies of the notification shall also be published in
the District Gazette, if any, and in the manner provided
for the proclamation under Section 6."
77) Hence to achieve a quietus to this vexed issue and to
do complete justice to the petitioners and also the State
this Court directs there should be a comprehensive and full-
fledged survey to locate/localize the entire Ac.111-03 cents
of land and a clear demarcation of the same on the ground.
At his own cost the petitioner is given the option of engaging
the services of the Survey of India or the AP SAC or of any
reputed survey organization for this survey.
78) The respondents who are also staking a claim are
directed to provide all assistance for the survey including
but not limited to furnishing of all the records, past survey
reports, notifications, information of the Nizam survey
numbers, re survey numbers, basis for the erection of the
Carens etc. Necessary manpower must also be deputed by
the respondents to assist the survey. If the Survey of India
or others cannot conduct the survey the respondent State
should conduct this survey on its own with its resources
since it also has a claim for declaring the land as Forest
Area.
79) In either case the Survey should be completed within
six months from the date of receipt of the copy of this order.
80) After the above mentioned survey is completed, if the
respondents so desire to notify land as a reserve forest, the
Forest Department should carefully and scrupulously follow
the procedures stipulated under Sections 4 and 6 of the
Forest Act and the other Sections of the Act before coming
to the conclusions necessary for issuing the Notification
under Section 15 of the Act for notifying an area as Reserve
Forest Area. The procedural safeguards suggested should be
followed carefully both in letter and spirit.
81) After the survey is completed and the Ac.111-03 cents
is identified on the ground along with its clear boundaries
the 2nd respondent shall also take steps to register the four
sale deeds, which are bearing Nos.P91, P96, P97 and P98 of
2009 and complete the registration in all respects if the said
documents are otherwise in order. Prayer 1 is also granted
with this condition.
82) The last prayer is for an order against the
superimposition of the new survey on the old Sec.4
notification is also granted. This court has directed the fresh
survey etc and hence the super imposition etc may not be
relevant and / or needed in the circumstances. This prayer
is also allowed. The survey will result in the correct
localisation of the extents, with the boundaries.
83) With the above observations the Writ Petition is
allowed. There shall be no order as to costs.
84) Consequently, Miscellaneous Applications pending, if
any, shall stand closed.
__________________________
D.V.S.S.SOMAYAJULU, J
Date:15.03.2023
Note: LR Copy be marked.
B/o
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