* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.Nos.13948, 25421 and 25422 of 1995 % 15.09.2008 # The Divisional Forest Officer, Nalgonda ….. Petitioner Vs. 1. The Forest Settlement Officer, Hyderabad and others. ….Respondents. ! Counsel for the Petitioner: G.P. for Forests. ^ Counsel for the Respondents: G.P. For Revenue, C.Bhargava Sarma, Smt.V.Sandhaya, Sri E.V.S.S.Acharyulu, Sri M.H.Venugopal < Gist: >Head Note ? Citations: [1] 1990(2) SCC 715 22005(1) SCC 444 3AIR 1990 SC 334 4AIR 2005 SC 2227 52005(7) SCC 190 6AIR 2001 Rajasthan 51 72004(12) SCC 673 8 (1990) 1 SCC 193 9AIR 1971 SC 2355 10 (1994) 2 SCC 14 11 (1950) SCR 459 12 AIR 1963 SC 874 13 AIR 1965 SC 1595 14 (1999) 4 SCC 43 15 AIR 1959 SC 107 16 (1996) 1 SCC 435 17 1956 AC 736 18 (2002) 7 SCC 46 19 (1991) 4 SCC 1 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 13948 of 1995 Between: THE DIVISIONAL FOREST OFFICER NALGONDA ..... PETITIONER AND 1 THE FOREST SETILEMENT OFFICER HYDERABAD 2 THE DISTRIC JUDGE, NALGONDA 3 A.V.S.R.MURTHY S/O.METTAPALLI RAO, R/O.DISHITNAGAR, HUZURANAGAR. 4 V.V.SHOBANADRI RAO /SO.LAKSHMAN RAO. R/O.JAGGAYAPETA, KRISHNA DIST. 5 V.SRI RAMURTHY R/O.KAKSHMAN SHASTRI R/O.SHOBANADRI GUDEM MELLACHERUVU. 6 SMT.THAYATHAMMA W/O. LAKSHMAN SHASTRY R/O.6-29 SEETHARAMPURAM JAGGAPET KRISHNA DIST. 7 BUPATHI RAMA BADRA RAJU S/O.VENKATA RAGHAVA RAJU SAGAR ROAD, MIRYALAGUDA, NALGONDA DIST. 8 BUPATHI RAJU NIRMALA W/O.SRI RAMA CHANDRA RAJU. R/O. REDDY COLONY, SAGAR ROAD, MIRYALAGUDA, NALGONDA DIST 9 G.SUJANA W/O. SRI VIJAYENDAR R/O.REDDY COLONY, MIRYALAGUDA NALGONDA DIST. 10 G.VIJAYENDAR S/O.RAMACHANDRAIAH R/O.REDDY COLONY MIRYALAGUDA NALGONDA DIST. 11 SMT.EMANI SATHYA VANI W/O.SRI VIJAYENDAR R/O.REDDY COLONY, SAGAR ROAD, MIYALAGUDA, NALGONDA DIST. 12 SHAIK RASHA S/O.QUASIM ALI NEAR TALUQ OFFICEER JAGGAYAPET, KRISHNA DIST. 13 T.NARSIMHA REDDY S/O.SUBHAN REDDY R/O.3-3-RT, MUNCIPAL COLONY, MALAKPET, HYDERABAD. 14 T.MURALIDHAR REDDY S/O.MALLAREDDY H.NO.3-4-612/30 NARAYANAGUDA HYDERABAD. 15 B.SUBASH REDDY S/O.RANGA REDDY. R/O.H.NO.3-4-612/30 NARYANAGUDA HYDERABAD. 16 .AV.S.RAM MOHAN S/O/A.V.SHASTRY R/O.43/RT VIJAYANAGAR COLONY, HYDERABAD. 17 R.RAMA LAXMI W/O.A.V.S. RAM MOHAN R/O.43/RT, VIJAYANAGAR COLONY, HYDERABAD 18 R.RAMA RAO S/O. JAGANNAADHA RAO R/O.JAGGAYYAPET KRISHNA DIST. 19 S.RAMA CHANDRA REDDY S/O.NARAYANA REDDY R/O.H.NO.7-6-219 HIMYATHNAGAR HYDERABAD. 20 AMARAVADHI RAMACHANDRA RAO S/O.SADASIVA RAO H.NO.7-6-219. HIMAYATH NAGAR. HYDERABAD. 21 AMARAADHI SUDHAKAR RAO S/O.SADHA SIVA RAO ROAD NO.1 ARRS COLLEGE RAILWAY STATION HYDERABAD. 22 AMARAVATHI BHAVANI W/O.SADHA SIVA RAO OCC.HOUSE HOLD ARTS COLLEGE RAILWAY STATION HYDERABAD. 23 SRI.M.GOPAL REDDY COMMISSIONER OFFICE NAMPALLY HYERABAD. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to It is prayed that this Hon'ble Court may be pleased to issue any WRIT, ORDER OR DIRECTION,more particularly one in the nature of Writ of "CERTIORARI", calling for the records of the respondents 1 herein, in A/188/85; A/189/85 and A/190 of 85 dt:23-9-1986; And the records of the Respondent No.2 in A.S.NO.6/89 dt:27-12-1994, in partly conﬁrming the order of the ﬁrst respondents and quash the same as ARBITRARY, ILLEGAL and without jurisdiction and pass Counsel for the Petitioner:GP FOR FORESTS Counsel for the Respondent : MR.H.VENUGOPAL FOR R07.07.06,VAK-5 MR.E.V.S.S.ACHARYULU FOR RVAK-25TO29 GP FOR REVENUE FOR R MR.C.BHARGAVA SARMA FOR R SMT.V.SANDHYA FOR R The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.Nos.13948, 25421 and 25422 of 1995 COMMON ORDER: Seeking to have the order passed by the 2nd respondent in A.S.No.6 of 1989 dated 27.12.1994, in partly conﬁrming the order of the 1st respondent dated 23.9.1986, quashed, the Divisional Forest Oﬃcer, Nalgonda has ﬁled W.P.No.13948 of 1995. Aggrieved by the judgment and decree in A.S.No.6 of 1989 dated 27.12.1994, in reducing the compensation from Rs.606/- per acre to Rs.250/- per acre, and seeking a direction for payment of compensation of Rs.1750/- per acre with interest, solatium and all other beneﬁts, W.P.No.25421 of 1995 is ﬁled. A similar relief is sought in W.P.No.25422 of 1995 also. It is necessary to note that the petitioners in W.P.Nos.25421 and 25422 of 1995 are among the respondents in W.P.No.13948 of 1995. Since the very same order of the District Judge, Nalgonda, in A.S.No.6 of 1989 dated 27.12.1994, is under challenge in all the three writ petitions, they were heard together and are now being disposed of by a common order. The parties shall, hereinafter, be referred to as they are arrayed in W.P.No.13948 of 1995. Facts, in brief, are that Sri Velamakanti Lakshmana Rai Sastry ﬁled a claim petition before the Nizam’s Forest Settlement Oﬃcer on 11.3.1935 claiming that he was the son and successor of late Venkata Shobhandri Rai allegedly the pattedar of the lands in Sy.Nos.272,273, 274, 267, 270, 244, 96 and 269 of Weltur Village and Sy.No.266 of Chintalapalem village, Huzurnagar Taluk, Nalgonda District. The relief sought for in the claim petition was to delete the above said lands from the records of the forest block to enable the claimant to enjoy the same or in the alternative to compensate him with an equivalent extent of land in other villages of the Taluk. The claimant prayed, in the alternative, for compensation of Rs.50/- per acre contending that it represented half the market value of Rs.100/- per acre. He claimed compensation for the value of wood at Rs.5000/-. He sought compensation of Rs.2,28,550/- for the entire land and the value of timber. After an elaborate enquiry, the Forest Settlement Oﬃcer passed an order on 1.11.1938 (i) declaring that Sy.No.96 and 265 of Weltur village had not been included in the Reserve Forest; (ii) that the claimant’s patta of Sy.No.269 of Weltur village and Sy.Nos.290/1 and 290/2 of Chintalapalem village had not been proved and, as such, the claim regarding the same was dismissed for want of proof. These lands were directed to be included in the Reserve Forest; and (iii) that as the area of patta of Sy.Nos.244, 267, 270, 273, 274 of Weltur village; Sy.Nos.266, 8/1 of Chintalapalem village, and Sy.Nos.245 and 351 of Thammavaram village, was subject to the approval of the Forest Department in view of the circular No.84, and as the Forest Department had refused patta for these lands, these survey numbers should be excluded from the patta and included in the Reserve Forest. Aggrieved thereby, Sri Lakshmana Rai Sastry ﬁled an appeal before the Subedar under Section 16 of the Hyderabad Forest Act. The appellate authority, after considering the submissions, and the material on record, passed order dated 30.9.1939 holding that the Forest Settlement Oﬃcer did not have the power to order cancellation of the pattas and if, during his enquiry, it came to light that the pattas granted by the Revenue Department were not valid, it was his duty to get them cancelled after submitting a report to the government. The appellate authority observed that, since the pattas were conferred in the years 1306-1311 fasli, and the government had decided that the pattas granted after the year 1305 fasli were liable to be cancelled in case the Forest Department deemed it fit for the purposes of the Reserve forest, the Forest Department ought to have taken steps to get the pattas, granted earlier, cancelled. The appeal was allowed and the order of the Forest Settlement Officer was set aside. On the matter being carried in revision to the Government in the Revenue department, the Secretary, Revenue, after hearing arguments, observed that the Forest Settlement Oﬃcer had considered the matter in detail and had justly rejected the claim of pattas, that, in fact, there was no proof of patta regarding survey Nos.96 and 269 situated at Weltur village and Survey Nos.290/1 and 2 situated at Chintalapalem, that the Settlement oﬃcer had rejected the claim regarding survey Nos.96 and 265 situated in Weltur as they had not been included in the Reserve forest and that the claim regarding Survey Nos.269 and 290/1 and 2 of Chintalapalem, which had been included in the Reserve forest, had been rejected as there was no proof of their patta. It was further observed that the decision of the Forest settlement oﬃcer about the ‘entry’ was correct, that the Forest Department had not expressed its consent regarding the pattas granted and, as such, they had been included in the reserve forest. While observing that pattas were standing for certain period, it was held that there was no enjoyment and that the revenue amount paid during this period could be taken back by moving the Revenue Department. In conclusion, it was observed: “…..It seems that the appeal was preferred to the Subedar against this decision of the Settlement Oﬃcer and the matter was abruptly considered that the patta granted by the Revenue Department is not liable to be cancelled without reference or consult with it and the Forest Department is not entitled to get the patta cancelled after 44 years. In view of this the order was made by the appellate Court. In fact it is evident from the record that these Sy.No. had been included in the proposed Reserved Forest of the Forest Department long before 1315 F. T he rights of the pattadars remained in paper only notwithstanding it seems that the subedar was in misconception about the nature of patta and longstanding patta holders. T he Settlement Oﬃcer cannot be enshouldered by this responsibility. As far as we have considered that it is the duty of the claimants to prove their case before the Settlement Oﬃcer otherwise he has no other go except to the reject the claims. On the above grounds, the Revision petition of the Forest Department is allowed….”. (emphasis supplied) It is thus evident that the order of the Subedar was set aside and the order of the Forest Settlement Oﬃcer was confirmed in revision. On conclusion of the proceedings before the revisional authority, the government issued a notiﬁcation under Section 19 of the Hyderabad Forest Act, (published in the gazette on 18.2.1954), constituting the Chitalapalem Reserve Forest Block with effect from 18.3.1954. More than three decades thereafter, Sri V.V.Sobhanadri Rao, ﬁled application dated 02.09.1985 contending that he was owner and pattedar of an extent of Acs.1804.02 in Weltur village of Huzurnagar Taluq, Nalgonda District, that the Forest Department had occupied the lands in the year 1337- 39 F. without observing the formalities required by law, that prior to occupation of the said lands by the Forest Department the ancestors of the claimant had enjoyed the lands for a period of 39 years i.e. from 1298 F. to 1337 F, that the revenue oﬃcials had been collecting land revenue regularly and till date the entire land was being recorded in the name of the claimant during Jamabandi which showed that the Forest Department had not cared to follow the legal procedure of paying compensation to the owners. According to the claimant they had approached the Forest Department in the year 1944 F. for either release of the land to the claimant or for payment of compensation which was rejected by the Forest Department, that aggrieved by the said order they had preferred an appeal to the Subedar who had upheld the claim vide judgment No.191 of 1348 F. The claimants further contended as under: “….The forest department ﬁled Revision to the Board of Revenue. It was held by the Board that these lands belong to the claimant only and patta cannot be cancelled as circular No.84 dated 21.12.1305 F. is not applicable to these lands and that it is proper to pay such huge amount as compensation and advised the claimant to approach the Revenue Department for getting refund of the land revenue paid by the pattedars though Forest Department had occupied the said lands…..” As is evident from the order of the Additional Revenue Secretary, on behalf of the government in the Revenue department, the aforesaid observations attributed to them, in the petition ﬁled by the claimants, are not reﬂected in the said order. In their claim petition dated 02.09.1985, the claimants sought compensation towards the land, forest produce, solatium and interest. The Forest Settlement Oﬃcer, vide letter dated 03.09.1985, informed the Divisional Forest Oﬃcer that Sri V.V.Shobhanadri Rai had preferred two claim petitions for diﬀerent extents of land in Weltur and Chitalapalem villages and that a claim petition was ﬁled by A.Venkateswar Rao with respect to the land in Thammavaram village of Huzurnagar Taluk of Nalgonda District. The Divisional Forest Oﬃcer was called upon to submit a report with regards the name of the forest block, its legal status and whether these lands were included in the Reserve forest. The Divisional Forest Oﬃcer submitted his reply on 20.04.1986 stating that all the ﬁles had been submitted to the Revenue Secretary by the Chief Conservator of Forests on 14.12.1949 and that the matter was pending with the Government. On the aforesaid application of the respondents- claimants dated 02.09.1985, the Forest Settlement Oﬃcer passed an order on 23.09.1986 taking note of the notiﬁcation under Section 7 of the Hyderabad Forest Act which was published in the Gazette dated 06.09.1343 F. corresponding to 01.01.1934 and that the notiﬁcation under Section 14 was prepared by the Forest Settlement Oﬃcer on 17.09.1953. He noted that the deceased claimant Sri Lakshmana Rai Shastry had submitted that the Pattadar of the Acs.6809-23 Sri Sobhanadri Rao was his adoptive father, that aggrieved by the earlier Forest Settlement Oﬃcer’s orders the claimants’ legal heirs had ﬁled an appeal before the then Subedar, that the appellate authority had upheld the claim, that, thereupon, the Forest Department had ﬁled a revision to the Board of Revenue which was dismissed by the Additional Secretary to the Board of Revenue. This ﬁnding of the Forest Settlement Oﬃcer is contrary to the evidence on record as the revision petition ﬁled by the Forest Settlement Oﬃcer had, in fact, been allowed and not dismissed. The Forest Settlement Oﬃcer further observed that the appellate and revisional authorities had allowed the claim and that, under Section 13 of the Hyderabad Forest Act, every order passed in appeal had to be treated as ﬁnal and the Forest Settlement Oﬃcer had to deal with it as if it had been made in the ﬁrst instance. On the question of delay, the Forest Settlement Oﬃcer observed that when they were asked to show cause for the inordinate delay from one stage to another, the claimants had pointed out that the principal claimant Sri Lakshmana Rai Shastry was murdered when the present claimants were aged 4 years and 2 years respectively. The Forest Settlement Oﬃcer held that limitation did not apply to this case as the properties were under the Court of wards at the time of notiﬁcation and hence the lands in question gained the status of trust property. He found substance in the representation of the claimants that, as long as compensation was not paid by the government for their lands included in the Reserve forest, the Forest Department was under an obligation towards them in as much as the Government continued to be a trustee of the claimants and, hence, limitation had not expired. The Forest Settlement Oﬃcer referred to the appeal preferred by the claimant to the Subedar, to the order of the Subedar and then observed: “…..Against the order of Subedar the Forest Department ﬁled revision before the then Additional Secretary, Board of Revenue on the ground that permission to cancel pattas can be obtained any time after the formation of a forest block. It was also stated in revision that the Subedar had not delved deep into the matter and so he had arrived at the conclusion which is unfavourable to the Forest Department. The claimants, who were the respondents in the Revision petition, contended that the pattas of the said lands were granted prior to the issue of circular No.84 of 1305 F. which provides that as and when bandobast pattas are to be issued the Forest Department’s consent has to be obtained. The Board of Revenue also subscribed to the order of the Subedar regarding payment of compensation to the pattedar and his descendants…….”. The afore-extracted observations are also not reﬂected in the order of the Board of Revenue. The Forest Settlement Officer further held: “….The order of the appellate authority i.e., the Subedar, Gulshanabad and the Board of Revenue and the opinion expressed by successive collectors to award compensation to the pattedars requires to be honoured even today. When the higher authorities set right the matter, may it be quantum of compensation, it becomes obligatory be implement the orders of the appellate authority. When the Secretary to former Board of Revenue did not express any view which was contrary to the orders of the Subedar, Medak upholding the rights of the pattedar, the Forest Department kept quiet. By implication the Department allowed the claimant the relief granted by the appellate authority. After the death of the father claimant, the deceased claimant’s successors awaited compensation on the basis of orders in their favour. The FSO who was duty bound to submit the valuation of the lands failed to do so from 2nd Shahrevar, 1338 F. to date. As any further delay would have imposed greater burden on the exchequer in the shape of accumulation of interest etc. the valuation statement of the patta lands included in the Forest Block was submitted to the Collector for his approval and for providing funs for payment of compensation. Copies were marked to CCF, CF, DFO, and GP Nalgonda. Since there was no response from the authorities concerned except the District Collector Nalgonda it became necessary for me to pass the award especially when the claimants insisted on some order or other…….”. The Forest Settlement Oﬃcer ﬁxed the compensation at Rs.600/- per acre for 3033 acres and apportioned the compensation amount of Rs.2,10,31,428/- at 60% to the pattedars and 40% to the creditors/pairavikars. In addition, he directed payment of interest at 9% per annum from 1.1.1934 to 31.12.1934, at 15% per annum for 52 years from 01.01.1935 to 31.12.1986 and 30% solatium on the market value which, according to the Forest Settlement Oﬃcer, worked out to Rs.6,934/- per acre. The said amount was apportioned between the pattedars and creditors/pairavikars. It is this order of the Forest Settlement Oﬃcer dated 23.9.1986 which the petitioner claims was passed behind their back and that a copy thereof had been received by them only on 6.10.1988. Raising several grounds, including that the Forest Settlement Oﬃcer, who passed the order under appeal, did not have jurisdiction to pass the order as it was passed after a notiﬁcation was issued under Section 15 of the A.P. Forest Act corresponding to Section 19 of the Hyderabad Forest Act, that, in the earlier award passed by the then Forest Settlement Oﬃcer, the rights of parties had been conclusively decided, that the Forest Settlement Oﬃcer had passed the order under appeal without notice to the petitioner, that the order was passed behind their back, that the Forest Settlement Oﬃcer had conveniently failed to mention that the earlier order of the Subedar was set aside and the order of the then Forest Settlement Oﬃcer had been upheld by the Revenue Secretary, the petitioner preferred an appeal in A.S.No.6 of 1989 before the District Judge, Nalgonda. The said appeal was disposed of by order dated 27.12.1994 reducing the compensation awarded by the Forest Settlement Oﬃcer from Rs.606/- to Rs.250/- per acre along with the statutory beneﬁts provided by Act 68 of 1984, additional market value, 30% solatium and interest at 9% and 15% per annum respectively. Aggrieved thereby, the present Writ Petitions were filed before this Court. Learned Government Pleader for Forests would submit that the Forest Settlement Oﬃcer was appointed pursuant to a notiﬁcation issued in 1348 Fasli proposing to constitute an extent of Acs.6809.23 of land as Reserve forest, that on completion of the enquiry, orders being passed pursuant thereto, the appeal preferred thereagainst being disposed of, and on an oﬃcial notiﬁcation being issued under Section 19 of the Hyderabad Forest Act, the Forest Settlement Oﬃcer becomes functus oﬃcio. According to the Learned Government Pleader, the order of the Secretary, Revenue, passed in the year 1945, attained ﬁnality, that a ﬁnal notiﬁcation under Section 19 of the Hyderabad Forest Act was issued in the year 1954 and the respondents-claimants, having kept quiet for more than three decades thereafter, could not reopen concluded issues or claim compensation on the specious plea that their lands were also taken over for the purpose of constituting a Reserve Forest. She would contend that, while the order of the Subedar was set aside by the Secretary, Revenue, the subsequent Forest Settlement Oﬃcer had selectively extracted portions of the said order, had included therein conclusions which did not form part of the original order and had held that the order of the Subedar had been conﬁrmed in appeal. She would submit that several sentences, which are not to be found in the Order of the Secretary, Revenue, were quoted in the subsequent order of the Forest Settlement Oﬃcer dated 1.11.1938 as if it formed part of the original Order and that the order of the Forest Settlement Oﬃcer dated 23.09.1986, directing payment of compensation to the respondents-claimants, were acts of fraud and deceipt. Learned Government Pleader would submit that the Forest Settlement Oﬃcer had directed payment of compensation observing that it was in the course of implementing the orders of the government through the Secretary, Revenue when, in fact, the government had held against the claimants and had conﬁrmed the order of the previous Forest Settlement Oﬃcer. According to the Learned Government Pleader the letter dated 03.09.1985 was not a notice, it did not mention the date of hearing, in reply thereto the Forest Department had addressed letter dated 20.04.1986 informing the Forest Settlement Oﬃcer that the records were with the government, that the respondents herein, in their application ﬁled before the Forest Settlement Oﬃcer dated 02.09.1985, had only sought implementation of the order of the government in the revenue department and did not contend that the said order was a nullity. She would submit that the contention that the order of the Secretary, Revenue is a nullity was evidently an after-thought as the order of the Forest Settlement Oﬃcer dated 23.09.1986 was not based on such a premise, that no order carries the brand of invalidity on its forehead and, until it is declared to be a nullity by a competent Court/Tribunal, the order continues to remain in force and must be presumed to be valid. She would contend that, since the petitioner herein was not put on notice of the dates of hearing nor was any oﬃcer of the Forest Department examined by the Forest Settlement Oﬃcer, before passing an order directing payment of compensation, the order of the Forest Settlement Oﬃcer dated 23.9.1986 was illegal. Learned Government Pleader would submit that while all these contentions, including that the impugned order was barred by res judicata, had been raised in appeal, the District Court, despite recording that such contentions had been urged, however, chose not deal with any of the contentions. She would submit that the order of the District Court suﬀered from errors apparent on the face of the record requiring it to be quashed in certiorari proceedings under Article 226 of the Constitution of India. Learned Government Pleader would submit that, pursuant to the interim orders passed in the writ petition, the petitioner had deposited Rs.20 Lakhs which the respondents–claimants were permitted to withdraw on furnishing third party security and that, in case the petitioner was to succeed in the writ petition, the petitioner must be held entitled to recover the said amount of Rs.20 lakhs. Smt. V.Sandhya, Learned Counsel appearing for some of the claimants, would fairly state that there was only one order of the Secretary, Revenue, and that the said order was in favour of the Forest Department and against the respondents-claimants. Learned Counsel would, however, contend that the said order was a nullity as the original claimant had died during the pendency of revision proceedings and that his