THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD DATED: -04-2011 WRIT APPEAL Nos. 601 AND 634 OF 2007 WRIT APPEAL No. 601 OF 2007 Between: The Divisional Forest Officer, Kaghaz Nagar Division, Kaghaz Nagar, Adilabad District and two others ..... APPELLANTS AND Ch. Ramanaiah and four others .....RESPONDENTS WRIT APPEAL No. 634 OF 2007 Between: The Divisional Forest Officer, Kaghaz Nagar Division, Kaghaz Nagar, Adilabad District and two others ..... APPELLANTS AND Ch. Ramanaiah and four others .....RESPONDENTS THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL Nos. 601 AND 634 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) These two writ appeals under Clause 15 of the Letters Patent are directed against the common order dated 11-04-2007 passed in Writ Petition Nos.16868 and 16881 of 2006 wherein and whereby a learned single Judge of this Court allowed the writ petitions directing appellant No.1 W.A.No.601 and appellant No.2 in W.A.No.634 of 2007 to pass fresh orders on the application made by the respondents–writ petitioners to fell the tree growth standing over an extent of Acs.38.50 gts. in Survey Nos.127/22, 127/23 and 127/24 of Kushnepally Village of Bejjur Mandal, Adilabad District within two weeks from the date of the order, keeping in view the findings recorded the Court in allowing the writ petitions. The facts in nutshell which gave rise to filing of these writ appeals are as under: The respondents–writ petitioners claiming to be pattadars of about Acs.38.00 of land in Survey Nos.127/22, 127/23 and 127/24 of Kushnepally Village of Bejjur Mandal, Adilabad District covered by tree growth made an application the Divisional Forest Officer, Kaghaznagar under the Andhra Pradesh Forest Produce Transit Rules, 1970 (for short ‘the Rules’). The Divisional Forest Officer by order dated 31-03-2006 rejected the application on the ground that the tree growth is in the catchment area of river Pranahitha and the felling of trees may cause ecological degradation. On such rejection, the petitioners made a representation on 18-04-2006 to the Principal Chief Conservator of Forest who is arrayed as respondent No.1 in the W.P.No.1688 of 2006. The Principal Chief Conservator of Forest after calling the remarks from the Conservator of Forests, Adilabad rejected the representation of the petitioners vide proceedings dated 29-05-2006 observing that no felling or transit permit can be given to the writ petitioners in view of the fact that the land in Survey Nos.127/22, 127/23 and 127/24 of Kushnepally is falling inside the Gudem Reserve Forest, notified under Section 19 of the Andhra Pradesh Forest Act (for short ‘the Act’). Questioning order dated 31-03-2006 passed by the Divisional Forest Officer, Writ Petition No.16868 of 2006 is filed and aggrieved by order dated 29-05-2006 passed by the Principal Chief Conservator of Forests, Writ Petition No.16881 of 2006 is filed. It is contended by the writ petitioners that in pursuance of the application dated 02-05-2001 made by the previous pattadars seeking the felling and transit permits for the tree growth, the Forest Range Officer, Bejjur on the instructions of the Divisional Forest Officer has inspected the tree growth standing on the said lands on 19-06-2001 and 28-06-2001 and submitted a report on 19-07-2001 stating that the patta lands are located outside the reserve forest and there will be no ecological effect due to the removal of tree growth existing in the patta land and also furnished approximate quantity of the timber available in the lands. Again on the directions of the Divisional Forest Officer, Kaghaznagar directing the Forest Range Officer to refix the forest cairons and submit a report, the Forest Range Officer after conducting joint inspection along with the Mandal Revenue Officer, Bejjur and the survey staff submitted a report to the Divisional Forest Officer on 14- 02-2002 stating that the reserve forest boundary is tallying with the sketch map of patta land which is out of reserve forest line and the forest boundary pillars are refixed and maintained properly. When the Divisional Forest Officer directed the Forest Range Officer to survey the reserve forest land with reference to the gazette notification and establish the reserve forest line and to survey the patta area with reference to the revenue map, the Forest Range Officer in Rc.No.269/patta/2001, dated 09-06-2002 submitted a report along with a surveyed map and Superimposed map with link attribute data to the Divisional Forest Officer, Kaghaznagar. In reply to the said letter, the Divisional Forest Officer by proceedings in Rc.No.3173/2001-S4, dated 24-07-2002 requested the Chief Conservator of Forests to clarify about the applicability of the Forest Conservation Act involving tree growth etc. The Principal Chief Conservator of Forests through reference No.31334/2002-F5, dated 02-09-2002 had informed the Divisional Forest Officer that the provisions of the Forest Conservation Act will be attracted if the area is recorded as forest in the Government records or if the area is forest within the meaning of forest as per the judgment of the Supreme Court dated 12-12-1996 in Writ Petition (Civil) No. 202 of 1995 and called upon him to examine the said points and take action accordingly. The Divisional Forest Officer vide his proceedings Rc.No.3173/2001-S4, dated 24-09-2002 sought for a report again from the Mandal Revenue Officer, Bejjur about the status of patta lands and Bilmaqta or Inam etc. The Mandal Revenue Officer in his letter No.B/239/01, dated 07-10- 2002 has informed the Divisional Forest Range Officer stating that the lands in question are not Bilmaqta or Inam lands, they are patta lands. The Divisional Forest Officer sent a report in proceedings Rc.No.3173/2001-S4, dated 19-10-2002 to the Conservator of Forests, Adilabad stating that the land in question is located outside the reserve forest and does not form part of the reserve forest and the lands are not recorded as forests in the government records. On the representation of the previous pattadars when no action is taken, they filed a representation to the Chief Minister. Acting on the representation, the Government had directed a joint survey to be conducted by the officials of Forest, Revenue and the Assistant Director, Survey and Land Records in the presence of the pattadars and send a report vide memo dated 20-09-2004. As per the directions of the Government, the authorities have conducted a joint survey and submitted a report to the Collector, Adilabad in Rc.No.D/1441/2005, dated 20-07-2005 who in turn submitted a report to the Principal Chief Conservator of Forests on 08-11-2005 stating that the lands in question are patta lands and they are outside reserve forest. The previous pattadars filed Writ Petition No.9633 of 2005 challenging the letter dated 05-04-2005 addressed by the Divisional Forest Officer to the Conservator of Forests recommending rejection of application for grant of permit and the said writ petition was withdrawn on 08-06-2005 since it is only a recommendation but no final orders are passed rejecting the request. The Divisional Forest Officer in his proceedings Rc.No.3173/2001-S4, dated 31-03-2006 rejected the applications for grant of permits stating that the tree growth in the area falls in the catchment area of river Pranahitha and any felling of tree growth will cause ecological degradation and the area will become ecologically fragile and imbalanced and removal of trees in and around irrespective of status of land in the area will be hit by the directions of the Supreme Court dated 22-08-1995 in Writ Petition (Civil) No. 202 of 1995. According to the petitioners, the judgment of the Supreme Court is not applicable to the case on hand. Therefore, the order passed by the Forest Range Officer rejecting the application for grant of transit permit and the order of the Principal Chief Conservator of Forests dated 29-05-2006 are arbitrary and illegal. A detailed common counter affidavit has been filed by the Divisional Forest Officer stating that as per the 20 point proforma issued by the Mandal Revenue Officer, Bejjur, an extent of land admeasuring Ac.38.50 cents in Survey Nos.127/16, 127/17 and 127/18 is a patta land, and Kundini Bai, Hemalata and Narahari Rao are in possession of Acs.14.00, Acs.154.00 and Acs.10.50 respectively. Mohd. Waheed who is their General Power of Attorney Holder submitted an application on 02-05-2001 requesting to grant felling permission of standing tree growth in Survey Nos.127/1A, 127/1E and 127/1AA of Kushnepally and that the said lands are purchased by the respondents–writ petitioners from the above pattadars and it is a fact that the Divisional Forest Officer directed the Forest Range Officer to fix up the carrions after conducting the joint inspection and the survey report has not been accepted by the Divisional Forest Officer. It is also stated that for conducting wrong survey and submitting wrong report by the Forest Range Officer, action was initiated against him by the Conservator of Forests, Adilabad vide proceedings Rc.No.9313/2003/M1, dated 19-11-2003. As per the instructions issued by the Principal Chief Conservator of Forests in his proceedings Rc.No.27757/2002/X1, dated 17-07-2002, the applicability of Forest Conservation Act, 1980 was examined by the Divisional Forest Officer and vide proceedings Rc.No.3173/2001/S4, dated 31-03-2006, he intimated the GPA holder of the vendors of the petitioners that his application dated 04-08-2003 was rejected for the reason that the suit land is in the catchment of Pranahitha river which is about 8 KMs with a contiguous natural tree growth from Kushnepally village and, therefore, the tree felling in this area would cause ecological degradation. It is further stated that the removal of the trees is prohibited by the order of the Supreme Court dated 22-08-1995 in Writ Petition (Civil) No. 202 of 1995. Report dated 19-10-2002 is sent by the Divisional Forest Officer to the Conservator of Forests stating that the land is located outside the reserve forest after inspection based on the re-fixing of boundary carrions by the then Forest Range Officer, Bejjur who has submitted report of survey dated 07-06-2002 which is subsequently found to be wrong and disciplinary action has been initiated against the said Forest Range Officer. The Mandal Revenue officer, Bejjur in his letter No.B/239/01, dated 07-10-2002 addressed to the Divisional Forest Officer furnished the particulars in pahani for the land in Survey No. 127/1 to an extent of Acs.38.50 as forest which attracts the provisions of the Forest Conservation Act, 1980. On the representation made by the GPA holder of the petitioners to the Chief Minister which was communicated by the Government in Memo dated 03-06-2004 through the Principal Chief Conservator of Forests to the Divisional Forest Officer for seeking a report and remarks, the Divisional Forest Officer sent a detailed report dated 23-08-2004 to the Government requesting to reject the request of the petitioners. On the further representation of the GPA holder to the Principal Secretary to Government, the Government communicated the same to the Principal Chief Conservator of Forests in memo dated 29-10-2004 who in turn communicated to the Divisional Forest Officer vide Ref.No.21237/2004-F5, dated 04-11-2004, whereas the Government requested to arrange for a joint inspection over the land with the officers of the forest, revenue and Assistant Director of Survey and Land Records in the presence of the pattadars to ascertain whether the land in question in Survey Nos.127/22, 23 and 24 admeasuring Acs.38.50 of land exists in the reserve forest or outside the reserve forest. As per the instructions of the Government, joint inspection was made on 04-04-2005 and reported to the Conservator of Forests vide Rc.No.3173/2001-S4 (S2), dated 05-04-2005 which was intimated to the District Collector, Adilabad and Assistant Director, Survey, Settlement and Land Records, Adilabad. The Mandal Revenue Officer and the Assistant Director of Survey, Settlement and Land Records in the joint inspection report stated that the Forest Range Officer has not furnished the inclusion of Survey No.127 in the Gazette notification of reserve forest Gudem. Whereas the Forest Range Officer, Bejjur clearly shown the reserve forest boundary of Gudem Reserve Forest near Kushnepally village as per Gazette notification. As per the Gazette notification, the reserve forest Gudem published in 1355 Fasli for which there is boundary description based on natural features like cart track, nalas etc. and no mention of areas survey number wise mentioned included in reserve forest from Kushnepally village and hence there is no mention of Survey No.127 in Prohibitory Order Book also. Therefore, the inspection report prepared on the basis of the reserve forest boundary fixed by the Forest Range Officer is not correct. On receipt of the report from the District Collector, the Principal Chief Conservator of Forests called for specific remarks and in that regard, the report of the Joint Collector has been sent to the Conservator of Forests. The joint inspection report cannot be acted upon. Once the Mandal Revenue Officer, Bejjur in his letter No.B/239/01, dated 07-10-2002 furnished the particulars in column No.16 of Pahani to the Divisional Forest Officer, the land in question which attracts the Forest Conservation Act as per the directions of the Supreme Court in W.P.No.202 of 1995, the petitioners are not entitled to permits. Writ Petitioners filed a reply in W.P.No.16881 of 2006 denying the natural tree growth in the land. The forefathers of the previous pattadars have raised the plantation over the patta lands and the report of the Forest Range Officer, Bejjur which was not accepted by the 1st respondent therein is not correct and no reasons are given as to why the report of the Forest Range Officer dated 19-07-2001 is not acceptable. The order passed by the Supreme Court dated 22-07-1996 is not applicable to the case on hand. The Divisional Forest Officer has already found that the lands in question are located outside the reserve forest. There is no new material before the present Divisional Forest Officer, Kaghaznagar to differ with the conclusions arrived by the earlier Divisional Forest Officer. Once the area is notified under Section 4 of the Act, the pattadars are entitled for compensation under the Land Acquisition Act. In the absence of any notification issued or compensation paid, the petitioners are entitled to tree growth grown in the patta land. The application for grant of transit permits were mainly rejected on the ground that the removal of trees in the lands will cause ecological imbalance in the area. When the trees have fallen due to the gales and cyclone the petitioners are entitled to transport the timber. If the permits are not issued immediately to the trees fallen due to the cycle and gales, the villagers will illegally steal and transport the tree growth. This Court by order dated 02-08-2007 directed the Principal Chief Conservator of Forests, Andhra Pradesh to appear in person and assist the Court. Pursuant to the said order the Principal Chief Conservator of Forests appeared in person on 09-08-2007 and filed an affidavit stating that a letter was addressed by him to the Special Chief Secretary to Government, Environment, Forest, Science and Technology Department in Roc.No.21237/2004/F5, dated 07-08-2007 asking for a joint survey to be conducted at a higher level by the Commissioner, Survey, Settlement and Land Records, Hyderabad about the location of Sy.Nos.127/22, 127/23 and 127/24 with reference to the Gudem reserve forest. Further, the uncertainty/confusion about the location of the patta lands is mainly arising due to the fact that the boundaries of the Gudem reserve forest are descriptive in nature and are not supported by the bearings and coordinates and the Forest Department would be bound by the joint survey which would be conducted by the Commissioner, Survey, Settlement and Land Records which would give a solution to this issue. This Court by order dated 30-08-2007 passed the following order: “We are conscious of the fact that the finding recorded by the learned single Judge about the status of the land of the pattadar is primarily a finding of fact, but with a view to ensure that the conflicting reports prepared as a result of joint survey conducted on three different occasions do not result in injury to the public interest, we deem it proper to direct that a fresh joint survey be conducted by the Commissioner, survey and Land Records, Hyderabad in the presence of both the parties and report based on such survey be submitted before the Court within a period of one month from today. Ordered accordingly.” Pursuant to the said order a report dated 09-02-2008 has been submitted and on filing the report, the Divisional Forest Officer filed W.A.M.P.No.548 of 2008 to declare the report of the Commissioner, Survey, Settlement and Land Records as null and void and set aside the same. In para-2 of the report it was held it was decided to refix the forest boundary strictly in accordance with the description in the forest notification and revenue boundaries to be fixed strictly in accordance with the village records without taking into account subsequent maps, documents and data. The description of the boundaries in the Gazette notification of Gudem reserve forest is vague and lacking clarity and report also states that the notification does not contain record of measurements like bearings and distances between the points and it has the boundaries of the reserve forest in various directions with reference to the names of the villages and survey numbers of some physical features and general cardinal directions. Learned Advocate General would contend that location of Survey No.127 is in dispute. Gudem reserve forest was notified under Section 19 of Hyderabad Forest Act, 1355 Fasli vide G.O.Ms.No.546, Agriculture, dated 19-03-1958 giving details of the village in an extent of Ac.41470.12 gts. The report of the joint survey conducted by Commissioner of Survey, Settlements and Land Records, Hyderabad dated 09-02-2008 only discloses that reserve forest boundary could not be refixed with certainty because the description of boundaries in the Gazette notification of Gudem reserve forest is vague and lacking clarity and the notification does not contain record of measurements like bearings and distances between the points. The description contains several inadequacies and incompatible information like names of non-existing villages viz., Koipalli and Anjani and non-existing survey numbers viz., 183 of Kushnepalli and it is held it is not possible to refix the forest boundary in accordance with the Gazette notification especially the portion of the boundary from Sushmeer to Ambhaghat. The report also discloses that the village boundaries and land marks mentioned in the reserve forest map do not tally with those of the combined village map. Even according to the super-imposed map, the disputed area falls outside the reserve forest area. The revenue officials were unable to trace out Sy.No.183, having an area of 115.22 gts. out of which 67 acres was allotted to Gairan; and Kushnepalli village map boundary line adjoining to reserve forest Gudem is in North-Western direction; whereas the village boundary points fixed by the Deputy Director after survey are found in North- Eastern direction. The Conservator of Forests is the very same officer, who had attended the joint survey and had already raised the points mentioned in the letter of Principal Chief Conservator of Forests; he concluded that it is not possible to precisely locate the forest boundaries in the relevant region, but the village survey boundaries can be precisely laid down on the ground, which indicates that the dispute area is part of Sy.No.127 of Kushnepalli village and outside the forest boundary. The report does not reflect the correct position as explained in the additional affidavit filed in WAMP No.548 of 2008. In the additional affidavit filed on 21-01-2010 by Mr.M.A.Maboob, Divisional Forest Officer, Kaghaznagar Division, Kaghaznagar, Adilabad District it was stated that the finding of the Deputy Director, Head Quarters, Hyderabad that Gudem reserve forest block map provided by the Divisional Forest Officer was not considered on the ground that it was prepared in 1968. In fact, the map was prepared in the year 1965 which is three years before the notification was published. The area was handed over to the Forest Department for management during 1903 vide Gazette notification published at page 530 of the Official Gazette Part-I dated 29-09-1312 Fasli (05-07-1903) by the then Hyderabad Government. The area was declared as Protected Forest under Section 3 of the Hyderabad Forest Act 1326 Fasli. He also contended that disputed land is adjacent to boundary line of Gudem reserve forest. Therefore, the report should be ignored and opportunity should be given to the appellants with regard to Gazette notification available with the department, and until re- survey was done and area is identified, no permit could be granted to the respondents/writ petitioners. On the other hand, Sri S.Ravi, learned senior counsel for the respondents/writ petitioners contended that there is no dispute with regard to identity and location of the land which was clarified; all along an attempt was made to fix the boundaries of the reserve forest. The Divisional Forest Officer addressed a letter dated 01-07- 2002 to the Conservator of Forests wherein it is categorically stated that earlier Sy.Nos.127/16, 127/17, 127/18 are assigned Sy.Nos.127/1, 127/1 and 127/1 respectively which do not fall within the scheduled area in chapter-III A of Andhra Pradesh Forest Act, 1967. It is Bilmaqta and the occupants are entitled to get the timber and other produce and the land revenue had been paid continuously without any arrears. The Forest Range Officer, Bejjur submitted the superimposed map of forest showing the refix coirons upon joint survey and the location of the revenue Sy.Nos.127/1, 127/1 and 127/1 are outside the reserve forest and touching it. The Divisional Forest Officer also addressed a letter to the Conservator of Forest certifying that patta lands are located outside reserve forest between cairns 24 and 25 and, therefore, do not form part of the reserve forest and the same was not recorded as ‘forest’ in the Government record. The Sub-Collector addressed a letter to the District Collector, Adilabad dated 20-07-2005 certifying that patta land i.e. Sy.Nos.127/22, 127/23 and 127/24 in an extent of Ac.38.50 cts. covered with tree growth/teak wood and existing outside the reserve forest. In turn, the Collector wrote a letter to the Principal Chief Conservator of Forests on 08-11-2005 stating that patta lands in the above survey numbers are existing adjoining to the reserve forest boundary but not in the reserve forest and the same are outside the reserve forest. The learned single Judge, who has recorded the report of the joint survey, gave a finding that boundaries are fixed on the basis of village boundaries. The notification issued in G.O.Rt.No.243, Agriculture, dated 22-03-1958 published in the A.P.Gazette dated 03-04-1958 fixing the coiners of forest area. The notification does not include patta land. When all along the parties are claiming the lands in Sy.Nos.127/22, 127/23 and 127/24 as patta lands, unless the lands are notified as ‘forest’, the petitioners are entitled to cut tree growth and therefore, the judgment under appeal do not call for any interference. In view of the above submissions, the point that arises for consideration in these appeals is: “Whether the lands claimed by the petitioners are patta lands or included in the Gudem forest area for enabling them to claim transit permits” This Court by order dated 07-07-2008 suo motu impleaded the District Collector, Adilabad and Mandal Revenue Officer, Bejjur as respondents 4 and 5. Pursuant to impleadment the Tahsildar (5th respondent) filed a counter affidavit in W.A.No.601 of 2007 stating that Sri Vojjala Kishore s/o Narahari Rao was the pattadar for the land bearing Sy.No.127/22 of an extent of 14 acres and in Sy.No.127/24 of an extent of Ac.10.50 cts. situated at Kushnepally village and Smt. Hemalatha w/o Narahari Rao was the pattadar for the land in Sy.No.127/23 of an extent of 14.00 acres situated in the same village. Respondent No.1 purchased Ac.14.00 of land in Sy.No.127/22 and his wife—2nd respondent purchased Ac.14.00 in Sy.No.127/23 and his son—3rd respondent purchased Ac.10.50 cts. in Sy.No.127/24 under various registered sale deeds dated 01-10-2005 and the change was also brought into revenue records. It is not necessary to go into the various other aspects as pleaded by the parties earlier. This Court by order dated 30-08-2007 directed joint survey by the Commissioner, Survey, Settlement and Land Records, Hyderabad