Sree Raja Rajeshwara Builders And ... vs Prl Secy, Forests Dept., Hyd 6 Ot
2021 Latest Caselaw 1180 Tel

       THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

               WRIT PETITION NO.3706 OF 2015

ORDER:

This writ petition is filed seeking to declare the action of

respondents 1 to 3 in occupying an extent of Ac.14.22 guntas of

land belonging to the 1st petitioner in Sy.No.201/1, Saheb Nagar

Kalan Village, Hayathnagar Mandal, Ranga Reddy District, over

and above an extent of Ac.102.00 of land in the said survey

number notified as forest land under the Andhra Pradesh Forest

Act, 1967 in G.O.Ms.No.778 F&A (For-III) Department,

dated 08.06.1971 and further declare the action of respondents

1 to 3 in not agreeing for a Joint Survey in respect of the land in

their possession in the aforesaid survey number as arbitrary and

illegal and consequently direct the respondents 5 to 7 to conduct

a joint survey of the entire land in the aforesaid survey number,

which is in possession of respondents 1 to 3 pursuant to the

notification in G.O.Ms.No.778 F&A (For-III) Department, dated

08.06.1971 in the presence of the representatives of the 1st

petitioner as well as respondents 1 to 3 and further direct the

respondents 1 to 3 to deliver possession of the aforesaid extent

of Ac.14.22 guntas of land, if it is found in the joint survey that

respondents 1 to 3 are in possession of excess land.

2. It is the case of the petitioner that an extent of 770.27

acres of land in Sy.No.201, Sahebnagar Kalan Village was

registered as Arazi Maqta of Salarjung Estate. An extent of 200

acres out of 770.27 acres was found to be in possession of

harijans and other backward classes of the said village, which

land was fit for cultivation and accordingly the District Collector

(respondent No.5) informed the 3rd respondent that the aforesaid

200 acres of land cannot be reserved for notifying as forest land

and the remaining extent after excluding the said 200 acres

could be reserved under Section 4 of the A.P., Forest Act, 1967.

Thereafter, in respect of 200 acres of land, an enquiry was

conducted under the provisions of the Andhra Pradesh Inams

Abolition Act, 1955 and Occupancy Rights Certificates were

granted in respect of the said 200 acres in favour of 70 persons

during the years 1979 and 1980. Pursuant to the grant of

Occupancy Rights Certificates, the names of said persons were

mutated in the revenue records in the year 1981 itself.

3. During the year 1980, the Project Officer, Urban

Development Authority, Hyderabad, Andhra Pradesh, addressed

a letter dated 11.01.1980 to respondent No.5 and sought for

submission of alienation proposals with regard to the aforesaid

200 acres of land. In response to the same, respondent No.6

addressed a letter dated 02.01.1981 informing the Project Officer

that the relevant records have been verified and patta has been

made in favour of 70 persons in compliance with the Ryotwari

Certificates issued by the Revenue Divisional Officer, that the

same have been implemented in the Jama Bandhi for the year

1980 and there is no scope for treating the said 200 acres of

land as Government land and hence, the question of submitting

alienation proposals does not arise.

4. The first petitioner entered into an agreement of sale dated

05.01.2000 with Rachakonda Pedda Balaiah and 36 others for

purchase of 97 acres of land from out of the aforesaid 200 acres

in Sy.No.201, Sahebnagar Kalan. The first petitioner and the

vendors address a letter to the respondents 3 and 4, seeking

mutation of the land under the provisions of the Andhra Pradesh

Rights in Land and Pattadar Passbooks Act, 1971 as well as

Andhra Pradesh Rights in Land and Pattadar Passbooks Rules

1989. As no action was being taken, the first petitioner

addressed a letter dated 29.08.2005 to the Commissioner, Land

Administration to issue suitable orders to respondent Nos.5 and

6 to mutate the said land in favour of the first petitioner and

issue pattadar passbooks and title deeds. The Chief

Commissioner, Land Administration, Hyderabad by his letter

No.ROM/ROR1/480/05, dated 30.09.2005 directed the 6th

respondent to arrange for mutation in respect of aforesaid land

subject to payment of stamp duty and registration charges.

5. The first petitioner filed W.P.No.24749 of 2005 before this

Court to declare the action of respondent Nos.4 to 6 and the

Revenue Divisional Officer in not conducting enquiry for

implementation of mutation. The Deputy Inspector of Survey,

issued a notice dated 09.04.2009 to the 1st petitioner, his

vendors, 3rd respondent and Village Secretary for joint survey

and demarcation of the land, Thereafter, respondent No.7

submitted a report to the 5th respondent, stating that during the

survey, the Forest Range Officer, Hyderabad has informed that

as per their records, the Forest Department is in possession of

an extent of 102 acres of land in Sy.No.201/1 and that as per

the measurements taken during survey, the Forest Department

is in possession of Ac.116.22 guntas of land and that the

aforesaid 97 acres of land is included in the land in occupation

of the Forest Department and that the Forest Department is in

possession of excess of land to an extent of Ac.14.22 guntas.

6. The respondent No.3 filed a counter affidavit, denying the

allegations in the writ petition and stated that in fact

Gurramguda Forest block with a total extent of Ac.411.20

guntas from three villages viz., Sahebnagar kalan, Gurramguda,

Nadergul and Turkayamjal has been under the control and

management of the Forest Department since past several years.

In the year 1953, Forest Department was put in actual

possession of Sy.No.201 with an extent of Ac.770.21 guntas for

establishing Soil Conservation Research Center under the orders

of the Board of Revenue of the erstwhile Government of

Hyderabad.

7. When it was proposed to be constituted as a Reserve

Forest, it was found that an extent of about Ac.200 was under

encroachment, therefore, it was deleted from the proposed

reservation. Consequently two forest blocks were formed viz.,

Sahebnagar forest block with an extent of Ac.400 and

Gurramguda forest block with an extent of Ac.411.20 guntas.

8. The Government under G.O.Ms.No.778 F&A (For.III)

Department, dated 18.06.1971 proposed to constitute

Gurramguda Forest block as a reserve forest and issued

notification under Section 4 of the Andhra Pradesh Forest Act.

9. The Government also appointed Forest Settlement Officer,

Hyderabad to consider objections and enquire and determine the

existence of any rights in or over the land. Consequently, the

Forest Settlement Officer also issued declaration under Section 6

and enquiry as required under Chapter II of the Forest Act was

held for final notification constituting the Forest Block as

Reserve Forest under Section 15 of the Act. Under Section 7(2)

of the Forest Act, 1967, granting patta in the proposed reserve

forest by or on behalf of the Government is prohibited. The

Joint Collector, Ranga Reddy District set aside the Occupancy

Rights Certificates. The Joint Collector, Ranga Reddy District

also directed the Mandal Revenue Officer, Hayathnagar to make

necessary amendment in the revenue records. In CCC Appeal

No.84 of 1982, the High Court observed that the Forest

Department perfected the title by adverse possession for a period

exceeding 12 years.

10. The Tahsildar, Hayathnagar, basing on the entries made in

pahani of 1979-80, has mentioned that Sy.No.201 of

Sahebnagar kalan village is registered as "Arazi Maqta of

Salarjung Estate" but according to the same pahani, the land in

Sy.No.201 of Sahebnagar kalan is classified as "Kancha

Poramboke Sarkari", which means the land belongs to the

Government. Occupancy Rights Certificates were said to have

been issued by the Revenue Divisional Officer on 05.12.1979.

The land of 97 acres belonging to 37 persons which was

purchased by the petitioners needs to be identified on the

ground and surveyed for preparation of the sketch.

11. The notification issued under Section 4 of the Forest Act

describes the boundaries by magnetic bearings and distance

from station to station. The ground reality is that the area as

described in the notification has earned a legal status and it

cannot be altered by deleting any area. The entire land is a

proposed reserve forest, it can neither be de-reserved nor can it

be diverted for a non forestry purpose without the prior

permission of the Government of India as per Section 2 of Forest

Conservation Act, 1980. The writ petition is not maintainable

and therefore, it is liable to be dismissed.

12. Heard both sides.

13. The petitioner firm entered into an agreement of sale on

05.01.2000 with Rachkonda Pedda Balaiah and 36 others for

purchase of Ac.97.00 guntas of land from out of Ac.200.00

guntas in Sy.No.201, Sahebnagar Kalan village. Rachakonda

Pedda Balaiah and 70 others were originally in possession of the

lands under Enam and thereafter, they were granted Occupancy

Rights Certificates and accordingly, their names have been

entered in all relevant revenue records during 1979-80

and 1981.

14. In view of the rise in land value, when there was difference

of opinion between the petitioner firm and its vendors, the

petitioner firm filed O.S.No.68 of 2000 on the file of II-Additional

Senior Civil Judge, Ranga Reddy District, seeking perpetual

injunction in respect of Ac.97.00 guntas against Rachakonda

Pedda Balaiah and 36 others. The said suit was ended in

compromise by judgment dated 22.03.2000.

15. The Chief Commissioner of Land Administration, Andhra

Pradesh, Hyderabad by his letter dated 30.09.2005 directed

respondent No.6 to arrange mutation of Ac.97.00 gutas in favour

of petitioner firm. Since the orders dated 30.09.2005 were not

complied, the petitioner filed W.P.No.24749 of 2005 on the file of

this Court and the same has been disposed of in favour of the

petitioner by order dated 15.12.2005, directing to consider for

mutation.

16. The Deputy Inspector of Survey issued proceedings dated

09.04.2009 for joint survey. In the process of survey,

respondent No.7 has reported to respondent No.5 that as per the

records, the forest land is only an extent of Ac.102.00 guntas,

but in the survey, physically, it is noticed that the forest

department is in possession of Ac.116.22 guntas. Thus, the

forest department is in excess possession of Ac.14.22 guntas.

17. This fact is evident from the survey report dated

29.06.2009 of the Assistant Director, Survey Land Records,

Ranga Reddy District addressing the District Collector, Ranga

Reddy in pursuance of the joint survey conducted on two

occasions i.e., on 22.04.2009 and again on 03.06.2009 in the

presence of the Survey Department Officials, Forest Range

Officer, Mandal Surveyor, Village Secretary, villagers and

applicants. The Survey Officials have conducted the survey by

using ETS (Electronic Total Station) Machine. The land to an

extent of Ac.14.22 gutas in excess was included in forest land.

18. In this regard, the Assistant Director of Survey has also

prepared a sketch along with his report showing the area which

is in possession of forest department in Sy.No.201/1. The said

fact of excess land of the petitioner falling in forest land came to

light only after the survey conducted on 22.04.2009 and on

03.06.2009,

19. Respondent is a welfare State and bonafides of the

respondent/forest department requires that they ought to have

surrendered the excess land in favour of revenue department or

to the claimants no sooner it came to its notice, stating that

there is excess land found in forest land. But they failed to do

so. It is unjust on the part of the forest department to retain the

land to which it has no title. The action of forest department

fighting for the land like a private person in the above back

ground, cannot be appreciated. Forest Department being one

wing of the Government and the Revenue Department being

other wing, both cannot have a contradictory and inconsistent

approach on a factual position.

20. The forest department, highhandedly cannot state that the

excess land of Ac.14.22 guntas belongs to forest department

when an independent agency of other wing of the Government

i.e., Survey and Land Records has conducted joint survey in the

presence of the forest officials and noted that the forest

department is in excess possession of Ac.14.22 guntas.

21. The contention of the Government Pleader that the forest

department has taken over the land by way of notification long

ago and since then it is in possession and it developed forest and

thus the subject land is not a private land. The issue said to

have been resolved in CCCA No.84 of 1982 in favour of the

Government and thus the claim of the petitioner is hit by

principle of res-judicata.

22. The said contention cannot be appreciated, since neither

the vendors nor the petitioner are parties to the above City Civil

Court Appeal and therefore, the question of res-judicata does

not arise.

23. It is evident from the record that on 29.01.2009, the

Deputy Collector and Tahsildar, addressed a letter to the

Collector, Ranga Reddy District that the Occupancy Rights

Certificates which were issued in favour of the vendors of the

petitioner were cancelled by the Joint Collector during 1997, is

no longer subsisting since the aggrieved persons have filed an

appeal before the Chief Commissioner, Land Administration,

Hyderabad and the said appeal has been allowed in favour of the

claimants by order dated 30.09.2005 by setting aside the order

of Joint Collector and further directed to issue pattadar pass

books to the applicants.

24. It is not in dispute that the forest department is in excess

possession of land and once it is found to be excess, the forest

department has no right under Constitution of India to hold the

property of a citizen or even otherwise of any other department

being Government body. It is violation of Article 300A of

Constitution of India.

25. In the light of Occupancy Rights Certificates issued in

favour of the claimants, it is presumed that the land is private

property. The forest department ought to have immediately

surrendered the excess land no sooner it came to its knowledge

in the survey conducted in 2009 itself, but withholding the land

is nothing but an arbitrary and highhanded action of the forest

department. In a dispute with regard to deciding the title in

respect of a property among the forest department and revenue

department, which are two independent wings of State, the

petitioner/citizen cannot be put to any hardship.

26. We all aware that protection of environment and forest is

essential for the Nation and forest lands needs to be protected,

but it does not mean that the action of forest department if they

are exceeding their territorial limits and if they are in possession

of the land which is other than the forest land, cannot be

appreciated. In an event if the forest department is found in

possession of private land, it should pay the compensation to

the landlords or release the land in favour of owners. It is not

disputed that the forest department has not acquired the land

and they are not intending to pay any compensation. The issue

to be decided by this Court is whether the forest department is

in excess possession of Ac.14.22 guntas of land or not.

27. In the light of the survey report, it is found that the forest

department is in possession of Ac.14.22 guntas of land in

excess. As per its records, it is having only Ac.102.00 guntas.

But, physically, it is in possession of Ac.116.22 guntas.

Therefore, it is the bounden duty of forest department to

re-deliver the possession of excess land to the revenue

department and it is for the concerned revenue department to

decide with regard to the right and title of subject land and the

manner in which it has to be disposed of, but it is not the

responsibility of the forest department to contend legal rights

and Occupancy Rights Certificates of the claimants when there

is a specific order of the High Court in W.P.No.24749 of 2005 for

mutation and also order of Chief Commissioner, Land

Administration, Hyderabad for issuing pattedar pass books.

28. In view of the above, it got established that the respondent

forest department is in excess possession of land of Ac.14.22

guntas in Sy.No.201/1 (part) of Sahebnagar Kalan village

against their actual allotment area of Ac.102.00 guntas as

evident from the joint survey report which was conducted in

participation with revenue and forest department officials and in

the presence of claimants of the land. Therefore, the respondent

forest department is directed to hand over to the revenue

department the excess land in possession of respondents

admeasuring Ac.14.22 guntas and the revenue department is

directed to implement the orders passed in W.P.No.24749 of

2005 and redeliver the possession of land to the petitioner by

following due process of law. This entire exercise shall be

completed in (8) weeks from the date of receipt of the copy of the

order.

29. The writ petition is accordingly allowed. No order as to

costs. As a sequel, the miscellaneous petitions pending, if any,

shall stand closed.

_______________________ T.AMARNATH GOUD,J Date:15.04.2021.

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