HONOURABLE SRI JUSTICE NOUSHAD ALI +WRIT PETITION No.24231 OF 1999 % Date: 01-06-2010 Between: # R.R. Plantations Private Ltd., a private limited company having registered office at Plot No.6, Journalist Colony, Road No.3, Banjara Hills, Hyderabad represented by its Managing Director Sri D.Raghava Rao. ….Petitioner. And $ The State of Andhra Pradesh, Department of Forest, Secretariat, Hyderabad, represented by its Secretary and others. …Respondents. ! Counsel for the Petitioner: Sri B.Nalin Kumar. ^ Counsel for respondents: G.P. for Forests. < GIST: >HEAD NOTE: ? Cases referred: 1. (2004) 1 SCC 769 HONOURABLE SRI JUSTICE NOUSHAD ALI Dated 01-06-2010 WRIT PETITION No.24231 OF 1999 Between: R.R. Plantations Private Ltd., a private limited company having registered office at Plot No.6, Journalist Colony, Road No.3, Banjara Hills, Hyderabad represented by its Managing Director Sri D.Raghava Rao. …Petitioner. And: The State of Andhra Pradesh, Department of Forest, Secretariat, Hyderabad, represented by its Secretary and others. …Respondents. HONOURABLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.24231 OF 1999 ORDER: On the premise that the respondents 1 to 4 and the officers subordinate to them are interfering with the peaceful possession and enjoyment of the lands of the petitioners without the authority of law, the petitioners have filed this writ petition to forbear the respondents from dispossessing them without following due process of law. 2. The petitioners claim to be the owners of certain lands. The 1st petitioner claims to have purchased agricultural land measuring an extent of Ac.31.76 cents situated in S.Nos. 80, 81 and 82 in Tellapadu village, Kaligiri Mandal, Nellore District under a registered sale deed dated 6-4-1995. Similarly, the 2nd petitioner is said to have purchased the land admeasuring Ac.33.44 cents under a registered sale deed dated 30-4-1997 in S.Nos.78, 79, 83, 84, 86, 87 and 88 of the aforesaid village and 3rd petitioner claims ownership in respect of the land measuring of an extent of Ac.6.33 cents in S.Nos.77/1 and 77/3 by virtue of a registered sale deed dated 27-8-1997. The petitioners 2 and 3 along with the 1st petitioner developed the lands together and planted mango trees thereon. They claim that these lands are private lands which have been in their enjoyment with absolute rights. 3. The petitioners state that for no valid reason and without any authority of law, the respondents started interfering with their possession and enjoyment and on several occasions when their possession was sought to be disturbed, attempts were resisted and ultimately filed this writ petition seeking relief not to disturb their rightful possession of land. 4. A counter affidavit sworn by the 4th respondent-Forest Range Officer has been filed on behalf of the respondents 1 to 4 in which it is asserted that vide orders in G.O.Ms.No.1816, Food and Agriculture (Forest-III) Department, dated 10-9-1968 an extent of Ac.485-00 cents land comprised in Tellapadu Block was notified as reserved forest under the A.P. Forest Act, 1967 and the said notification was published in Nellore District Gazette dated 2.5.1977. Survey numbers 77, 78, 79, 83, 86, 87 and 88 in respect of which the petitioners have set up claim are partly included in the said Block. Subsequent thereto, a joint survey was taken up in the year 1999 along with Revenue Department which was completed on 22-7-1999 and boundaries of the reserved Forest Area was demarcated and granite pillars were erected, demarcating such boundaries. It is stated that during the process of demarcation, the petitioners were found to have encroached the forest area to some extent. The respondents therefore contend that the lands under dispute are forest lands. It is therefore contended that the petitioners cannot claim any rights over the forest land and the registered sale deeds do not confer any rights qua the respondents. 5. From the above, it may be noted that there is a serious claim by the petitioners over the lands as private property and a rival claim by the respondents as reserved forest area. Having regard to the rival claims which require adjudication of disputed questions of fact, the issue of title cannot be gone into in this Writ Petition. 6. It may, however, be noted that the respondents 1 to 4 in their counter affidavit admitted to the fact that the petitioners are in possession of some extent of land as encroachers. To the specific assertion of the petitioners that they raised mango garden, there is no categorical denial. Assuming that the claim of the respondents that the land is forest land and that the petitioners are encroaches, the respondents cannot resort to interfere with the possession of the petitioners and evict them without following the due process of law. The petitioners cannot be thrown out of possession otherwise than by invoking the provisions of relevant Statute and the procedure contemplated therein. 7. The Apex Court while dealing with the question of dispossession in RAME GOWDA (DEAD) by L.Rs. vs. M.VARADAPPA NAIDU (DEAD) by L.Rs. and another ([1]) observed -- “The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd., v. Kumar Naresh Narayan Roy (AIR 1924 PC 144 : 51 1A 293) Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court.” 8. The Apex Court after referring to the case law on the point, held: “It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” 9. Having regard to the above, it is to be held that the petitioner cannot be thrown out of possession otherwise than by invoking and following the provisions of relevant law and the procedure established by such law. 10. This Writ Petition is therefore disposed of in the following terms: (1) The respondents are restrained from evicting the petitioners from their respective lands without following the due process of law; (2) The respondents are at liberty to initiate steps under the relevant law and take further steps to recover possession as per the procedure contemplated therein; and (3) It is also directed that the petitioners shall not take any measures to plant further trees and carry on any agricultural operations on the disputed land until the possession is taken legally by the respondents. 11. This Court during the pendency of the writ petition by orders in W.P.M.P.No.4731 of 2001, appointed a receiver to harvest the mango crop and sell the same in the market and deposit the sale proceeds in this Court. The Commissioner accordingly, returned the warrant and filed a report to the effect that the crop was auctioned and knocked down in favour of one Sri G.Koteswara Rao for Rs.54,000/- and incurred Rs.300/- towards wages to the watchman. The amount is accordingly lying in deposit in this Court. The petitioners in paragraph 6 of their affidavit specifically asserted that the 1st petitioner’s company along with the petitioners 2 and 3 planted as many as 3,660 mango trees which became fruit bearing in due course of time. It is further asserted that a considerable amount was spent for the development of mango plantation on the aforesaid land. In the Counter affidavit of the respondents 1 and 4, as noted earlier, the said respondents admit the possession of the petitioners, although as encroachers. Further, there is no specific denial that this mango plantation has been developed by the petitioners. In view of the non-traverse of the specific assertion of the petitioners and admission of respondents 1 to 4, I feel it appropriate that the amount which is deposited in this Court be paid to the petitioners. 12. The Writ Petition is disposed of in the above terms. No costs. __________________________ JUSTICE NOUSHAD ALI Dated 01-06-2010 Dvs HONOURABLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.24231 OF 1999 Dated 01-06-2010 [1] (2004) 1 SCC 769