S.P Tiruvengal Bhattar vs State Of Telangana And 5 Others
2021 Latest Caselaw 2226 Tel

        THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

               WRIT PETITION No.20517 of 2018
                                AND
                       W.P.No.535 of 2020
COMMON ORDER:

1     These two Writ Petitions are filed assailing the action of the

respondent authorities in interfering with their peaceful possession

and enjoyment over the lands in Sy.No.318 admeasuring Ac.162 in

so far as W.P.No.20517 of 2018 is concerned and Ac.110 in so far

as W.P.No.535 of 2019 is concerned, of Nemalipuri Revenue

Village, Chinthalapalem Mandal, Nalgonda District as illegal and

arbitrary.

2 In both the Writ Petitions the survey numbers and villages in

which the extents of land which the petitioners are claiming is one

and the same. Hence these two Writ Petitions are disposed of by

this common order.

3 The case of the petitioners in W.P.No.20517 of 2018 was that

the petitioners are owners and possessors of agricultural land in

Sy.No.318 admeasuring Ac.162 of Nemalipuri village and land

admeasuring Ac.54-06 in Sy.No.52 of Vajinepalli village purchased

through various registered sale deeds. The allegation was that the

respondent Nos.4 and 5, without any authority of law are

interfering and disturbing their agricultural activities for the last

two years and in fact the respondent authorities are not permitting

the petitioners to enter into their lands contending that the subject

land is forest land. It is their further case that on their

representation to the District Collector in the year 2017, the

District Collector directed the Tahsildar to conduct a detailed

enquiry and to submit a report. Then the Tahsildar had addressed

a letter bearing No.B/22/2018 dated 12.01.2018 giving all the

details but so far no action has been taken. However, the

respondent Nos.4 and 5 are not allowing them to do agriculture.

Hence the Writ Petition.

4 On 20.6.2018 while admitting the Writ Petition, this Court

ordered both parties to maintain status quo existing as on that

date with regard to possession and enjoyment.

5 The case of the petitioner in W.P.No.535 of 2019 was that

the petitioner inherited the property from his forefathers. For the

past one year the respondent Nos.5 and 6 are interfering with his

peaceful possession and enjoyment of the subject land contending

that the entire land in Sy.No.318 of Nemalipuri village including

the land of the petitioner is forest land. It is further submitted that

the Government never declared the land in Sy.No.318 of

Nemalipuri village either as reserved forest or protected forest. But

the respondents are claiming it as forest land. It is further

submitted that when some private parties are interfering with his

possession and enjoyment over an extent of Ac.15.00, one Sukya

Naik filed O.S.No.73 of 2011 for perpetual injunction and that suit

was decreed in favour of said Sukya Naik holding that the schedule

land in the said suit was patta land.

6 The District Forest Officer filed Counter affidavit in

W.P.No.20517 of 2018. The same counter affidavit has been

adopted in W.P.No.535 of 2020 stating that as per the records

available with the Forest Department, the above land is completely

Reserved forest and presently the area is under full control and

supervision of the forest department. It is submitted that as per

the Gazette notification No.795 dated 29.3.1955 issued by the

Rural Re-Construction Department, which was published on

15.4.1955, the total area to an extent of Ac.1393.23 gts in

Sy.No.318 is protected Forest notified under Section 29 of

Hyderabad Forest Act, 1355F. The nature of the land before the

settlement as written in records was Uftada Banjara, which shows

that it did onto belong to the petitioner's vendor and as such any

purchase from him is void. If the petitioner's vendor has got any

right over the and in question, he should have produced

documentary evidence in reply to the notices issued by the

department on different dates in 1963 itself. As no documentary

evidence was received from the petitioner's vendor for four years,

the Divisional Forest Officer issued a notice lodging the case filed

by one Sri Ranga Raja Batta charya i.e. the petitioner's vendor.

From this it is evident that no pattas were issued in the said area

and no claim can be permitted with respect to the above area. It is

further submitted that when the land is notified as Forest in any

Government records no pattas can be given.

7 It is further submitted by the respondent that it is clear that

the records in the revenue department were not updated as per the

notification of Government and many other certificates were issued

by the revenue department without cross checking the documents.

It is the specific case of the respondent authorities that a joint

survey on status of Nemalipur protected forest was conducted

along with Revenue, Forest and ADSLR Squad party. As it was

pointed as overlapping of area in respect of Sy.No.52 of Vajinepally

village with Sy.No.318 of Vajinepally village, the Collector called for

remarks of District Forest Officer regarding the matter to settle the

issue. In the report, the District Forest Officer, Suryapet submitted

that the total area of Ac.1393-23 gts is Protected Forest notified

under Section 29 of Hyderabad Forest Act, 1355 F and it was also

concluded that the Sy.No.52 in Vajnepally village is created falsely

and by ignoring the notification of above area without proper

authority. If the pattas were issued in 1958, then it is ulta vires as

the issuing of patta is wrongly done without updating the revenue

records and hence if any pattas are issued they need to be

cancelled and the revenue records should be updated. Hence

prayed to vacate the interim order of status-quo dated 20.6.2018.

8 Heard Sri C. Ramachandra Raju, learned counsel for the

petitioner in W.P.No.535 of 2020, Sri S. Satyam Reddy, learned

senior counsel in W.P.No.20517 of 2018 and the learned

Government Pleader for Forests in both the Writ Petitions.

9 The learned counsel for the petitioners submitted that the

Government never declared the land in Sy.No.318 of Nemalipuri

village either as Reserved forest or as Protected Forest land. It is

further submitted that the notification No.795 dated 29.3.1955

issued by the Government declaring the land as Protected Forest,

does not pertain to the land in Sy.No.318 of Nemalipuri village but

it pertains to some other land of Nambapur. It is further submitted

that the respondent himself admitted in the counter affidavit that

the land in Sy.No.318 of Nemalipuri village was Agrahar and it is

needless to say that the land of Agrahar is purely private land. It

is further submitted that even if the subject land was Reserved

Forest, as claimed by the respondent authorities, the Reserved

Forest land shall not be declared as Protected Forest, under

Section 29 of Hyderabad Forest Act. It is further submitted that

the notification is only a preliminary notification, but not a final

notification and so far there is no final notification even after lapse

of 66 years. Therefore, the preliminary notice is no longer in force

and shall not be acted upon. It is further submitted that the

subject matter land is purely private land and that the allegation of

the respondent that patta was granted after issuing the notification

is totally false.

10 The claim of the petitioners is that they are the absolute

owners of the various extents of land stated supra. But the

petitioners have not filed any title deed in support of their

contention to show that they are the owners of the lands. Further,

the petitioners have not filed any evidence before the Court to show

that they are in peaceful possession and enjoyment of the lands in

question. The petitioners have not challenged the notification

issued by respondents in 1955. The petitioners cannot rely upon

the weakness of the respondent authorities. Instead of placing on

record for the purpose of primary evidence like link documents,

title deeds, the petitioners are relying on the secondary evidence

like internal correspondence letters between the forest and revenue

officials. When the petitioners are claiming certain relief from the

court, it is a prima facie requirement that the bona fides of the

petitioners should satisfy this court with regard to their ownership

and lawful right and its infringement. Since the petitioners failed

to establish their lawful right, question of granting the relief and its

infringement does not arise. There are disputed questions of fact

with regard to the lands and boundaries as well as title of the

parties.

11 It is the case of the Forest department that since 1955, the

Forest department is in possession of the subject lands and the

petitioners are not in possession of the same and that by way of

notification the respondents have clearly indicated the extent of

lands, names of villages, survey numbers and boundaries and

accordingly the Forest department is taking care of the lands in

question.

12 It is to be seen from the record that during 1963, 1964, 1965

and 1967 on number of occasions, the Government has addressed

the predecessors of the petitioners as well as some of the

petitioners to submit their documentary evidence in support of

their claim over the subject lands. But they have not submitted

any document and that they have not even attended before the

concerned authorities. The petitioners are relying on some third

party conveyance deed between the Kakatiya Cements and the

Government to show that the lands in Sy.No.318 of Nemalipuri

village are private lands. The petitioners cannot take transaction of

Kakatiya cements and say because land in Sy.No.318 is private

land, it belongs to petitioners but not forest department. This kind

of submissions cannot be appreciated. This cannot be treated as

direct evidence in support of the claim of the petitioners to show

that they are the owners and they are in possession of the subject

lands.

13 The petitioners have not challenged the notification issued

by the Government in notifying the subject lands as forest lands.

When the notification is not challenged, it is not open for the

petitioners to advance argument on Sections 29 and 30 of the

Forest Act. Since the disputed questions of fact are involved and

the possession of the parties also needs to be decided, it is clearly

a civil dispute and the petitioners have to approach the competent

civil court seeking appropriate relief for declaration of title and

recovery of possession if so advised.

14 Whether it is forest or revenue land is not the issue. Even it

is revenue land (not forest land), the duty cast upon the petitioner

to prove that the subject lands belong to the petitioner by showing

boundaries no document is filed to that effect. The revenue

authorities stated that the petitioners are not in possession and

they do not have any patta in their favour in respect of the subject

lands which is evident from Land Records Assistant dated

06.4.1965 addressed to the District Forest Officer, Nalgonda.

Moreover, the entries in pahanis, shetwar or any correspondence

cannot be treated as title deeds.

15 In the above facts, a reasonable apprehension has to be

drawn that as an after thought, after obtaining orders from Court,

petitioners would enter into the lands only upon the strength of the

Court orders and the same cannot be permitted. In the absence of

any title and lawful right, petitioners cannot enter into the land

and cannot claim any right and seek relief from this Court under

Article 226 of the Constitution of India.

16 Since the petitioners have not relied on specific violation of

law by respondents and prayed only for a direction against

respondent not to interfere with the possession, this Court relies

upon Order 39, Rule 1 of CPC., wherein to grant an order of

injunction restraining the respondents from interfering with the

possession of petitioner, the duty is cast upon the petitioner to

prove their possession. Further to claim title over the property,

petitioners have to file title deeds and explain flow of title in their

favour. The petitioners failed in both issues.

17 The petitioners are not in possession and are evicted in 2016

as per their affidavit. As per forest officials since 1955 they are in

possession and protecting the forest, holds weightage. Both

contentions are disputed question of facts.

18 The petitioners have not placed any reliance on O.S.No.73 of

2011 and categorically submitted that they are not taking any

shelter of judgment in O.S.No.73 of 2011.

19 In view of the above discussion, these two Writ Petitions fail

and accordingly they are dismissed. No order as to costs.

Miscellaneous petitions if any pending in these Writ Petitions shall

also stand dismissed.

__________________________ T. AMARNATH GOUD, J.

Date: 27-7-2021 Kvsn