THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 101 OF 2011 ORDER: 1. This Writ Petition is filed to declare the action of the third respondent in seizing the machinery and material excavated from the land to an extent of Ac.27.90 cents in Survey No.3 of Munagapadu Village, Sydapuram Mandal, Sri Potti Sriramulu Nellore District. 2. The averments, in brief, of the affidavit filed in support of the Writ Petition may be stated as follows: The land in an extent of Ac.28.30 cents in Survey No.3 of Munagapadu Village, Sydapuram Mandal, Sri Potti Sriramulu Nellore District is a government land classified as Konda Poromboke. One Smt. G.Sujatha, w/o. G.Prabhakar Naidu made an application to the fourth respondent for grant of quarry lease for road metal over an extent of Ac.27.90 guntas in Survey No.3. The third respondent, after calling for report from the Tahsildar, Sydapuram, submitted report dated 19.6.2008 to the District Collector, Nellore stating inter alia that after following all formalities, there is no objection for grant of quarry lease in the said land. Subsequently, the Revenue Divisional Officer, Gudur also submitted an enquiry report to the District Collector, Nellore recommending the application of Smt. G.Sujatha for grant of quarry lease. Basing on the two reports, the District Collector addressed letter dated 20.09.2008 to the fourth respondent stating that that revenue department has no objection for grant of quarry lease in her favour and that the Grampanchayat, Tocham also passed a resolution for grant of the permission in her favour. Basing on the said report, the Deputy Director of Mines and Geology, Guntur passed orders on 16.10.2008 granting quarry lease in faovur of the applicant Smt. G.Sujatha for a period of ten years from 9.1.2009 to 08.01.2009 for extraction of road metal on the said land. On execution of lease deed by the applicant on 9.1.2009, the fourth respondent passed orders permitting her to commence the quarry operations on the said land. As the original lessee could not carry on the quarry operations due to domestic problems, she transferred the unexpired portion of the lease in favour of the petitioner firm in the month of August, 2009, and the same was accepted by the Deputy Director of Mines and Geology, Guntur. In pursuance of the same, the petitioner executed a lease deed on 18.8.2009. Thereafter, the petitioner made an application seeking permission for establishment of semi-mobile stone crusher on the quarry leased out area, and the same was granted. Ever since, the petitioner has been carrying on the quarry operations on the leased out area without any objection and interruption. While so, on 23.12.2010, the third respondent issued a notice to the petitioner stating that they have illegally entered into Compartment No.115 of Munagapadu Reserve Forest and cut forest and encroached the forest land, which is an offence under the Andhra Pradesh Forest Act, 1967 (for short, ‘the Forest Act’) and accordingly directed to vacate the entire area within 7 days from the date of receipt of the notice, and also directed to submit objections if any in writing within a period of seven days otherwise the encroached land will be confiscated. Production Manager of petitioner firm submitted necessary documents and requested to drop further action in this regard. On perusing the documents, the third respondent addressed a letter on 28.12.2010 to the fourth respondent stating that during the field inspection on 18.12.2010, he noticed that the petitioner was taking mining activity in Survey No.3 which falls in Munagapadu Reserve Forest and on enquiry they informed that Mining Department granted lease in their favour and therefore requested the fourth respondent to cancel the lease in their favour. Without waiting for reply or action from the fourth respondent, the third respondent passed the impugned order on 03.01.2011. Hence, the Writ Petition. 3. The third respondent filed counter affidavit stating as follows: The petitioner was given all possible opportunities and sufficient time to file all valid documents and material in support of their claim, but it failed to produce the same. The petitioner approached this Hon’ble court without giving any opportunity to enquire the issue by the Government. The area in question is an integral part of Munagapadu Reserved Forest notified under Section 14 of the Forest Act vide G.O. Ms. No.1187, Food & Agriculture (Forest-III) Department, dated 20.06.1967. Since the petitioner was carrying out quarry/mining operation by fixing crusher (machinery & equipment) and made construction (operation room) in the Reserved Forest Area besides clearing and breaking up of forest land and removing the boundary stones also so that the boundary could not be identified, the operations are in violation of the Forest Act and also the Forest Conservation Act, 1980. Therefore, the first respondent no.3 issued notice under Section 20 (3) (1) of the Forest Act. But, the petitioner failed to produce valid documents for carrying out mining operation in the Reserved Forest Area. Since the mining operation is unlawful, there being damage caused to the forests under the guise of mining and in a bid to stop unlawful activities, the third respondent seized the machinery/equipment under the aforesaid section and initiated action, but not confiscated the same, and the act of the third respondent is as per law. It is further stated that, the No objection Certificate issued by the Revenue Department and grant of mining lease by Mines and Geology Department is contrary to the provisions of the Forest Conservation Act, 1980 and the same has been done without consulting the Forest Department. An extent of Ac.460.00 has been notified as Reserved Forest under Section 15 of the Forest Act vide GO Ms. No.1187, Food and Agriculture Department, dated 20.06.1967, and since then the land is vested with the Forest Department. The Government of Andhra Pradesh issued detailed guidelines in GO Rt. No.6 of EFS&T (For-I) Department, dated 6.1.2007 to all the concerned department regarding the procedure for taking up several projects in Reserved Forest areas and also communicated model proforma for applying for prior permission from the Government of India. Accordingly, the Mines and Geology Department is submitting proposals to the Forest Department. In this case, neither the Revenue Department nor the Mines and Geology Department approached the Forest Department prior to issue of No Objection and mining lease to the petitioner in respect of land in question. Immediately after notification of the subject land as Reserve Forest, the revenue records ought to have been changed with regard to classification of the land. Just because the land is not recorded as ‘Forest’ in Revenue records, it does not mean that the said land cannot be treated as ‘forest land’. As such, the mining department has not thoroughly examined the ownership of the land before processing the mining lease application. As such, the Revenue Department and the Mines and Geology Department have no jurisdiction to issue no objection certificate and mining lease respectively, to the petitioner without prior permission from the Government of India. It is further stated that the petitioner is running mining/quarry without valid permission from the Government of India. The representative of the petitioner firm who received notice from the third respondent on 23.12.2010 did not submit written representation against the action proposed to cause in the notice, and therefore, the action of the third respondent in making the said seizure is right. It is further stated that the fourth respondent addressed a letter to the Mandal Revenue Officer, Sydapuram requesting clarification of the subject area for taking further action in the matter, and in the said letter, the petitioner was informed not to do any quarrying operation at the subject area until further orders from his office. Thus, the fourth respondent, having convinced that there exists discrepancy on the classification of the subject land, sought clarification and informed the petitioner as above. The petitioner misled this Hon’ble Court stating that the third respondent confiscated its material/equipment. The petitioner caused damage to the Reserved Forest and carried out mining for which the petitioner is held responsible and the damage caused is liable for recovery from the firm. Hence, it is prayed to dismiss the Writ Petition. 4. The learned senior counsel Sri Vedula Venakta Ramana appearing for the petitioner contends that the third respondent –Forest Range Officer has no power to seize or attach the property in the Government land and that an officer not below the rank of Forest Ranger, at best, can only remove or evict a person from forest land or remove any building or any construction or anything grown or deposited on it, and therefore, the impugned order is liable to be set aside. 5. On the other hand, the learned Government Pleader for Forests appearing for the respondents contended that before taking the action of attaching the property, a notice was given to the petitioner, but the petitioner has not availed the opportunity, and therefore, the property has been attached by the Forest Range Officer, who is competent to attach under Section 20 of the Forest Act, and hence, there are no grounds to interfere with the impugned order. 6. There cannot be any dispute that a mandamus lies where an administrative authority acts without jurisdiction or in excess of jurisdiction. A power vested by the statute when exercised for a purpose other than what is stipulated under the statutory provisions, there is an abuse of power since the collateral purpose was not within the intendment of statute. 7. The petitioner is said to be carrying on quarry operations in an extent of Ac.27.90 cents in Survey No.3 of Munagapadu Village, Sydapuram Mandal, Sri Potti Sriramulu Nellore District basing on a lease granted by the Assistant Director of Mines and Geology, Nellore, the fourth respondent herein. Whereas the case of the respondents is that entire extent of the aforesaid land in Survey No.3 lies within the reserve forest as notified as per G.O. No.1187, Food & Agriculture (Forest-III) Department, dated 20.06.1967. 8. After hearing the rival submissions, the question that falls for consideration is whether the Forest Range Officer, who passed the impugned order dated 03.01.2011 is liable to be quashed ? 9. The impugned order dated 3.1.2011 reads thus: “This is to inform you that on 23.12.2010 Notice was issued as per Section 20 (0) (vii) of A.P. Forest Act, 1967 and Conservation Act, 1980 as you have established the Quarry Crusher and carrying on the works by illegally entering into the Compartment No.115 of Munagapadu Reserve Forest. In the said Notice, it was mentioned that within a period of 7 days from the date of receipt of the Notice you have to intimate to the Forest Officials that if you have got any rights and objections. Otherwise it was also informed that confiscation of the encroached land materials and vehicle will be done. But till date you have not submitted any of your rights and objections to the Forest officials. Therefore, on this day the land encroached by you and the materials, vehicles on the said land have been attached.” Sd/-xx xx xx Forest Range Officer, Venkatagiri” There must be some source of power to the third respondent to attach, seize or remove the material or forest produce in the reserve forest area. Section 20 of the A.P. Forest Act, 1967 deals with Penalties for trespass or damage in reserved forest and acts prohibited in such forests. Section 20 (1) (c) of the Forest Act provides inter alia thus: Any person who- in a reserved forest – (ii) trespasses, pastures cattle or allows cattle to trespass; and … (vii) clears or breaks or ploughs any land for cultivation or for any other purpose, shall be punishable. Under sub-section (3) of Section 20 of the Act, where a person contravenes the provisions of sub-clause (ii) or sub-clause (vii) of clause (c) of sub-section (1), a forest officer not below the rank of Ranger may evict the person from the forest or the land pertaining to which the contravention has taken place and remove any building or other construction or anything grown or deposited on it. Therefore, under sub-section (3) of Section 20, if the Forest Range Officer comes to the conclusion that in the reserved forest, any person clears or breaks up or ploughs any land for cultivation or for any other purpose, he can evict such person from the forest land pertaining to which the contravention had taken place and also remove any building or any construction or anything grown or deposited on it. ‘Forest produce’ is defined under Section 2 (g) of the Forest Act, which includes the following whether found in, or brought from, a forest or not, that is to say inter alia all products of mines or quarries. The term ‘any other purpose’ if read with definition is wide enough to include quarrying in the reserve forest. 10. Before passing an order under sub-section (3), the Forest Range Officer shall give an opportunity to the affected person to make a representation against the action proposed. Therefore, the Forest Range Officer is competent to remove the building or anything deposited on the reserved forest by giving a due opportunity to the party going to be affected. Whether the word ‘remove’ includes attachment or seizure where a person contravenes the provisions of sub-clause (ii) or sub- clause (vii) of clause (c) of sub-section (1) of Section 20 of the Forest Act. Sub-section (4) of Section 20 of the Act empowers the Divisional Forest Officer to confiscate any crop, building or other construction if a person contravenes sub-clause (vii) of clause (c) of sub-section (1). Unless power to seize or attach any building or other construction or anything grown or deposited on it, is exercised, the question of passing an order of confiscation under sub-section (4) does not arise. The sub-sections (3) and (4) are to be read together in a juxta position as they have got to be. Therefore, the power to ‘remove’ can be said to be include attach or seize property. 11. In the case on hand, it is not in dispute that the third respondent-Forest Range Officer, Venkatagiri has given a show cause notice dated 23.12.2010 to the petitioner, as required under the statute, for which the petitioner has not given any reply. Therefore, the impugned order has been passed on 03.01.2011 attaching the properties mentioned thereon. When the Forest Range Officer exercised the power under sub-section (3) of Section 20 of the Forest Act, it follows that the Divisional Forest Officer has to pass necessary orders under sub-section (4) within a reasonable time. No proceedings are initiated under sub- section (4) of the Act so far. After following the procedure under the proviso to sub-section ( 4 ) of Section 20 of the A.P. Forest Act, 1967, necessarily, the first respondent- Divisional Forest Officer has to pass appropriate order under sub-section (4) thereof, either confiscating the property or returning the property to the owner. Before passing such an order, the first respondent-Divisional Forest Officer has to give a reasonable opportunity to the petitioner to make a representation putting forth his case before him. The first respondent has to take appropriate decision considering the facts and circumstances of this case. 12. The learned counsel for the petitioner stated that the petitioner will produce all the material to show that he was given a valid licence or lease to carry out the quarry operations in the land in dispute and that he is entitled for return of the property. The said aspect has to be decided by the first respondent in accordance with law. The learned counsel further submitted that, since the property seized is machinery and material excavated from the disputed land, the entire exercised may be directed to be completed in a time bound schedule. 13. Therefore, the first respondent is directed to issue a notice to the petitioner as required under proviso to sub-section (4) of Section 20 of the A.P. Forest Act, 1967, within a period of one week from the date of receipt of a copy of this order, and the petitioner shall produce all the necessary material before the first respondent along with a representation within a period of one week from the date of receipt of the said notice, and thereafter, the first respondent shall pass appropriate orders considering the facts and circumstances of this case, under sub-section (4) of Section 20 of the A.P. Forest Act, 1967, within a period of three weeks. 14. The Writ Petition is, accordingly, disposed of. No costs. --------------------- (K.C.Bhanu, J.) 13.04.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 101 OF 2011 13.04.2011 THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 101 OF 2011 13.04.2011 Between: M/s. Srinivasa Stone Crushers Pvt. Ltd. …Petitioner And The Divisional Forest Officer, Nellore & others …Respondents