IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIRST DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT APPEAL NO : 39 of 2001 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 04/08/2000 in WP NO : 1590 OF 1990 on the file of the High Court.) Between: The A.P. Paper Mills Ltd Rajahmundry ..... APPELLANT AND 1 The State of A.P. Rep by its Secretary Forest Dept , Hyderabad. 2 The Dist Forest Officer kakinada. .....RESPONDENT(S) Counsel for the Appellant:M/SC.KODANDA RAM Counsel for the Respondent No.: . The Court made the following : HON’BLE MRS JUSTICE T.MEENA KUMARI AND HON’BLE MR JUSTICE RAMESH RANGANATHAN WRIT APPEAL No.39 of 2001 JUDGMENT: (Per Hon’ble Smt. Justice T .Meena Kumari) This Writ Appeal is ﬁled against the order in W.P.No.1590 of 1990, dated 04.08.2000. The Writ Petition was filed by the appellant herein to declare the proceedings of the 2nd respondent–District Forest Oﬃcer in Rc.No.1065/87- L, dated 29.01.1990 proposing to hold auction for the sale of cashew seeds and custard apple fruits grown in certain lands which were granted to the petitioner by way of lease under G.O.Ms.No.1176, dated 03.06.1970 and G.O.Ms.No.1774 dated 25.08.1970, as illegal and to quash the same. Facts, in brief, that led to ﬁling of the Writ Petition are that the petitioner is a limited company manufacturing paper. It has a manufacturing unit at Rajahmundry. According to the petitioner, it made a request for lease of 100 acres of forest area in Diwan Cheruvu and 50 acres in Maredumilli Reserve Forest on a yearly rent of Re.1/- for 30 years with an option to renew it for a further period of 30 years for the establishment of Research Plants to study the growth and economics of cultivation of exotic and indigenous pulpwood and also to obtain adequate supply of raw material needed for the industry, as the Government had the power to grant the lease under Section 17 of the A.P. Forests Act. According to the petitioner, the information that would be collected from the experiments would be of great practical importance to the industry as regards the adoption of the desired technique, choice of species, cost of production etc. The Chief Conservator of Forests seems to have recommended for grant of lease in favour of the petitioner and the Government granted lease in G.O.Ms.No.1176, dated 03.06.1970 with certain terms and conditions stipulated therein. The averments in the Writ Petition goes to show that by virtue of the said G.O. the petitioner took possession of 100 acres of land in Diwan Cheruvu on 08.07.1970 and 40 acres at Kundada. It seems that the petitioner made further request to the Government to lease out about 25000 acres of forest land within a radius of about 30 to 50 miles fro Rajahmundry to enable him to undertake plantations as the production capacity might go up to 50,000/60,000 tonnes per annum and that they were installing fresh equipment. The Chief Conservator of Forests seems to have recommended that an area of 604 acres in Diwan Cheruvu East Block may be leased out to the petitioner while reporting that 297 acres out of 604 acres contained immature plantation of cashew and Eucalyptus for which the Department had incurred an expenditure of Rs.61,332/-. By virtue of G.O.Ms.No.1774, the 1st respondent leased out 604 acres of forest land subject to payment of rent of Rs.15/- per acre. The G.O. prescribed that the lease period shall be 30 years and other conditions. According to the petitioner, as the land was found to be fallow and barren, another representation was made on behalf of the petitioner company in August, 1971 to the Government to ﬁx the period of lease as 40 years. In the letter dated 03.03.1972 of the Chief Conservator of Forest, it was stated that the growth (plantations) would be the property of the petitioner. By Memo No.2457/For.I/71-7, Food and Agriculture Department, dated 20.04.1972, the Government directed that the lease period of the land shall be 40 years instead of 30 years on a rent of Rs.15/- per acre, which was agreed to be reviewed every eight year subject to the stipulation that the revised rent shall in no case exceed the rent paid during the period by more than 50%. There seems to be lot of correspondence between the petitioner- company and the respondents. The contents in the aﬃdavit goes to show that the petitioner-company spent the following expenditure in the years 1971-72 to 1988-89. 1971-72 Rs.1,91,637.08 1972-73 Rs.4,26,762.53 1973-74 -- 1974-75 -- 1975-76 Rs.1,21,831.48 1976-77 Rs. 93,841.92 1977-78 Rs.1,84,074.85 1978-79 Rs. 50,794.23 1979-80 Rs. 73,338.23 1980-81 Rs. 93,519.17 1981-82 Rs.3,00,258.08 1982-83 Rs.1,57,674.00 1983-84 Rs.2,02,944.11 1984-85 Rs.4,11,339.64 1985-86 Rs.1,23,103.67 1986-87 Rs.4,94,490.63 1987-88 Rs.1,58,827.85 1988-89 Rs.4,38,302.32 The petitioner-company seems to have realized the sale proceeds of cashew seeds and custard apples from 1983 onwards. 1983 Rs.12,040 1984 Rs.20,600 1985 Rs. 1,600 (crop damaged) 1986 Rs.66,000 1987 Rs.71,501 1988 Rs.80,001 1989 Rs.59,500 According to the petitioner, he could not make any profit on account of the sale of the minor forest produce in the leased lands. It is also their grievance that under the schedule to the A.P. Minor Forest Produce (Regulation of Trade) Act only Anus (or Tuniki or Beedi) leaves are speciﬁed as minor forest produce and the sale of cashew seeds and custard apples is not governed by any statutory provisions. On 09.12.1989 the 2nd respondent has addressed a letter to the Government in Rc.No.1065/87-L that the M.F.P. yield in 704 acres for 1990 collection will be sold by him on any day in the last week of January, 1990. It was also made clear that the petitioner had no right over of the same and that the exact date of auction would be communicated in due course. A request was made to the 2nd respondent to drop the said proposal. The petitioner-company was also further informed, by the proceedings of the 2nd respondent dated 12.01.1990, that auction would be conducted for cashew and custard apple trees in 704 acres of land in Diwan Cheruvu, West Godavari District and, questioning the same, the present Writ Petition has been filed. The contentions urged, before the learned Single Judge, on behalf of the petitioner was that as the Government happened to be the lessor and the land in dispute was leased to the petitioner under the two G.Os, as stated supra, and therefore, the petitioner was entitled to collect the usufruct in view of Section 8 of the Transfer of Property Act and as such, the 2nd respondent had no right whatsoever to sell away the usufruct arising out of the land. On the other hand, the learned Government Pleader had submitted that even though the transaction was pursuant to a lease, the rights and obligations, which were incidental to the lease, need not necessarily be available to the petitioner in view of the provisions of the Government Grants Act, 1985. Basing on the said contentions, the learned Single Judge has dealt in extenso with regard to the rights accrued under Section 8 of the Transfer of Property Act and also with reference to the expression “grant” relying upon Jnanendra Nath Nanda and Others V. Jadu Nath Banerji and Others[1] and The State of U.P. v. Zahoor Ahmad and Another[2] Basing on the above two judgments, the learned Single Judge further observed as follows: “From the above two judgments, it can be seen that though the expression ‘grant’ is not deﬁned. A lease by the Government can also be a grant and be covered by the provisions of the government Grants Act, 1895. Such being the case, the transaction in question even though it satisﬁes all the requirements of a lease is deﬁned under the Transfer of Property Act need not carry all the necessary incidents of the lease with it. The purposes for which the petitioners sought the lease is only to raise plantation for securing the necessary raw material for their industry and also to carry on research plants but not for the purpose of making proﬁts out of the sale of various produce arising out of the existing trees at the point of time of the grant of the lease. I therefore see no illegality in the impugned proceedings. The writ petition is dismissed but in the circumstances without costs.” Aggrieved by the dismissal of the said Writ Petition, the present appeal is filed. Learned Counsel appearing on behalf of the appellant has argued before us more or less the same contentions which have been raised before the learned Single Judge to the eﬀect that once a lease is granted the Government is not entitled for the sale of usufruct arising out of the land and it has to be decided in the Writ Appeal whether a lease would amount to transfer of usufruct products and hence the order of the learned Single Judge has to be looked into on its own merits and decided in the Writ Appeal. We also went through the contents of the aﬃdavit ﬁled in support of the Writ Petition, and counter ﬁled by the Government Pleader and also the judgment of the learned Single Judge and the material annexed to the Writ Petition. It is not disputed that the Government have leased out the lands as requested by the petitioner company in the year 1970-71 by virtue of the two G.Os, that the petitioner company might have planted the crops for the purpose of the plantation and research work. However, the contents in the Writ Petition itself goes to show that it is a pure transaction of lease, the Government being the lessor and the company being the lessee. Under the above circumstances, we are of the opinion that the petitioner’s remedy would have been before some other forum. The averments in the aﬃdavit goes to show that they are purely questions of fact which have to be substantiated by evidence and this Court cannot go into disputed facts under Article 226 of the Constitution of India and it is for the petitioner to prove the said facts before appropriate forum. Under the above circumstances, we are of the opinion that this Court cannot go into the questions of facts more so where there is an agreement between the parties and both the parties stand as lessor and lessee. Hence, the Writ Appeal is liable to be dismissed. The Writ Appeal is, accordingly, dismissed. The petitioner-company is permitted to avail the remedies as available to it in law. _______________________ T.MEENA KUMARI, J. _____________________________ RAMESH RANGANATHAN, J. Date: 01.09.2008 GS/ASP [1] AIR 1938 CALCUT T A 211 [2] AIR 1973 SC 2520