THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.1992 of 2009 Date: 12.7.2010 Between: Chintalapadi Sudershana Raju and another. ..... PETITIONERS AND The Divisional Forest Officer and others. .....RESPONDENTS Counsel for the Petitioner s : Sri V.V.N.Narayana Rao Counsel for the Respondents: A.G.P. for Forests The Court made the following : THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.1992 of 2009 Order: This writ petition is filed for a mandamus to declare the action of the respondents in seeking to hold auction without identifying the petitioners’ lands in Survey Nos. 206 and 211 of Chinateernala Village, Nakkapalli Mandal, Visakhapatnam District for collection of usufruct of Casuarina topes and coconut trees as illegal and arbitrary. I have heard Sri V.V.N. Narayana Rao, learned counsel for the petitioners and the learned counsel representing the learned Government Pleader for Forests appearing for the respondents. The first petitioner claims to be the owner of Acs. 5.70 cents in Survey No.206 and Acs.9.48 cents in Survey No.211 and petitioner No.2 is the owner of Acs.12.00 in Survey No.206. Both these petitioners felt aggrieved by the notification dated 5.1.2009 issued by respondent No.1, wherein, he has notified that auction for right to collect cashew fruits and nuts will be held on 16.1.2009 in respect of the lands situated within the forest area of Pothukonda, Duvvada, Panchadarla Bayyavaram, Kovvada, Nerrellavalasa and Thirrapuram villages of Visakhapatnam and Nayanammapalem, Linu Kottur, Mettapalem, Marribanda, Pedapalli, Kottur, Gokivada, Rebaka, Gunupudi, Rajayyapeta and Chinatinarla villages of Yelamanchili. The lands of the petitioners are stated to be situated in Chinatinarla village, notified under Yelamanchili Forest area. In the counter affidavit filed by the Divisional Forest Officer, Visakhapatnam, respondent No.1, it is inter alia stated that while the petitioners are the owners of the lands in Survey Nos.206 and 211, they have occupied the land in Survey No.212, which is a forest land, that Vana Samrakshna Samithi was formed in Chinateenarla Village with 50 hectares of area (Acs.123.50 ) in Survey Nos. 21,23,25,26,129 and 212, out of a total area of Acs. 177.19 cents, and that the entire area was handed over to the said Samithi through a resolution. It is further stated that the Mandal Revenue Officer, Nakkapalli was requested for demarcation and on the said request, the Mandal Surveyor demarcated and fixed boundary of Survey No.212 on ground. He has further averred that the Mandal Revenue Officer, Nakkapalli, through letter dated 12.12.2006 furnished a report along with map of Survey No. 212 duly marking the encroachment area in separate colour. It is also stated that the petitioners have not entered the land in Survey No. 212 and during the last year the auction for sale of usufruct was held for that year. While emphasising that the Forest Department or the Vana Samrakshana Samithi have not disturbed the petitioners’ possession of the lands in Survey Nos. 206 and 211, he has however stated that the petitioners have illegally occupied the forest land in survey No.212 adjacent to Survey Nos. 206 and 211, by raising coconut and cashew topes. From the above averments contained in the counter affidavit, it is evident that respondent No.1 has admitted raising of cashew nuts and coconut topes by the petitioners in Survey No.212, which is stated to be a forest land. Under Section 20(3) of the A.P. Forest Act, 1967 (for short ‘the Act’), where a person contravenes the provisions of Sub-clause(ii) or (iii) of Clause (c) of sub-section(1), the authorities enumerated therein are empowered to evict the persons from the forest or the land pertaining to which the contravention has taken place. However, before taking such an action, the Officer concerned shall give an opportunity to the person likely to be affected to make a representation against the proposed action. In the instant case, respondent No.1 has admitted that the petitioners have raised cashew nut and coconut gardens in Survey No. 212. In the face of this admission, it is not permissible for the respondents to forcibly take possession of the property without following the procedure prescribed under Section 20(3) of the Act and issue the impugned notification for auctioning the forest produce. As such, I am of the opinion that the impugned notification cannot be sustained in law and the same is accordingly quashed. Respondent No.1 shall initiate proceedings under Section 20(3) of the Act by issuing notice to the petitioners. On receipt of the explanation, if any, from the petitioners, respondent No.1 shall consider the same and pass appropriate orders thereon. Subject to the above direction, the writ petition is allowed. No costs. __________________________ C.V. NAGARJUNA REDDY,J DATE: 12th July, 2010 pnb