THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.30758 OF 2010 ORDER: This writ petition is filed seeking to issue Writ of Mandamus declaring the action of the 1st respondent in issuing G.O.Ms.No.14, dated 05-02-2008 permitting the 2nd respondent for diversion of 231.94 hectors of forest land in compartment No.37 of Chatakonda Reserve Forest of Kothagudem forest division, Khammam District for open cast coal mining (OCP-II Kothagudem) in favour of 5th respondent as illegal, arbitrary and contrary to the provisions of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 1996 (Act 2 of 2007) and the provisions of Panchayats (Extension to the Scheduled Areas) Act 1996 (Act No.40 of 1996) and consequently seeking a direction to set aside the G.O. 2. It is stated in the affidavit filed in support of the writ petition that the petitioners are residents of Lachagudem village, Hamlet of Gangaram, Gangaram Panchayat and Koyagudem village of Tekulapally Mandal, Khammam District from their fore fathers. Their only source of livelihood is minor forest produce and podu cultivation. The petitioners belong to Scheduled Tribe community. The petitioners are entitled for recognition of their forest rights as per the provisions of Act 2 of 2007. The petitioners submitted their applications for recognition of their forest rights under Act 2 of 2007 and they are pending with 3rd respondent. It is further stated that the 1st respondent issued the impugned G.O. depriving the forest rights of the petitioners and further depriving their rights under Act 40 of 1996. The 5th respondent under impugned G.O. prevented the petitioners from collecting forest produce and doing podu cultivation and thus deprived the petitioners from their livelihood. When the petitioners resisted the same, the 5th respondent granted Rs.5,000/- per acre with their consent as humanitarian compensation. There are two tanks at Lachagudem and Koyagudem villages. There is about 500 acres of ayacut under these two tanks. The area proposed for mining under the impugned G.O. is the catchment area for these two tanks. Since the activity of open cost mining is already started in OCP-I, pit-2 of OCP-II, the above mentioned tanks were not filled even during rainy season. The lands of the petitioners are under pit-3 of OCP-II. If this pit is also started the above mentioned two tanks will completely remain dry. Thus the permission given to the 5th respondent under the impugned G.O. is hazardous to the petitioners and other people residing there. That apart there is spreading of dust due to open cast mining is severe in about 15 K.M. radius from the pit point, resulting the destruction of crops and causing adverse effects of the health of the people. Hence, the petitioners prays to set aside the G.O. 3. The 3rd respondent filed counter-affidavit denying the averments made in the writ petition. It is stated that Act 2 of 2007 came into effect from 31-12-2007 and diversion of forest land 231.94 Ha. of land were processed much before the said date and the Government of A.P. forwarded the application to Government of India and the Government of India accorded permission subject to fulfillment of certain conditions stipulated therein. After fulfillment of conditions by the user agency (SCCo Ltd.) the State Government has furnished compliance report and after satisfying with the compliance report, Government of India vide G.O.14, dated 05-02-2008 conveyed approval for diversion of 231.94 Ha. of forest land for Koyagudem OCP-II coal mining subject to certain conditions. After extracting tree growth in the entire area, the same was handed over to SCCo Ltd. The petitioners never approached this department for claiming their rights. It is further stated that there are no pending applications for recognition of forest rights under Act 2 of 2007. As per G.O., Forest Department handed over the area and the SCCo Ltd has started mining operations under open cast mining method and the company before taking possession from the department consulted the encroachers in the forest land and as per their willingness ‘humanitarian compensation’ was paid to the encroachers at Rs.5,000/- per acre and then only encroachers vacated the land and now it is under mining operation. As such collection of minor forest produce or cultivation of the diverted forest land does not arise as the land was handed over to SCCo Ltd., It is further stated that already trench cutting was done around the forest diverted area, SCCL has deposited total amount of Rs.1642.13 lakhs and Rs.3.114 lakhs towards charges for trench cutting around safety zone area. As such there is no violation in implementation conditions imposed by Government of India by 5th respondent. Hence, 3rd respondent prays to dismiss the writ petition. 4. The 5th respondent filed separate counter-affidavit denying the averments made in the writ petition. It is further stated that there is no violation of statutory rule or regulation. The application of this respondent for diversion of 231.94 Ha. of forest land was processed much before the Act 2 of 2007 came into effect. After satisfying with the compliance of conditions, the State Government forwarded the report to Government of India and the Government of India, vide letter dated 08-01-2008 issued formal approval for diversion of forest land. This respondent as user agency is willing to take suitable steps for Rehabilitation and Re- settlement of the Scheduled Tribes and other Traditional Forest Dwellers who are affected by the diversion of forest land. The rights of the occupants are not recognized under Act 2 of 2007 by the time, the forest land was diverted to this respondent. It is for the petitioners to prove that they are eligible for rehabilitation as per the provisions of Act 2 of 2007 and the Rules made there under. The forest department handed over the land to this respondent and this respondent started mining operations in the area and as on day area is broken and being worked under open cast method of mine. Before taking possession, this respondent paid Rs.5,000/- per acre to the cultivators on humanitarian compensation. It is stated that clearance was issued after satisfying with the compliance to the conditions imposed. With regard to allegation that the tanks are dried up due to mining operations, it is stated that the entire water from the mine as well as rain water is diverted through a garland drain to the Gaddi chervu tank and the tank is always having water. As regards to other tank of Tellavagu chervu, no mining operations are taken up so far in the catchment area. As regards spreading of dust due to open cast mining, it is to state that Ministry of environment and Forest, vide letter dated 11-06-2007 sanctioned environmental clearance, which is mandatory to the project stipulating certain conditions and all the conditions are being strictly complied with to avoid dust pollution. Hence, 5th respondent prays to dismiss the writ petition. 5. Learned counsel appearing for the petitioners contended that though the land of the petitioners was taken, 5th respondent has not taken suitable steps for Rehabilitation of the cultivators, that 1st respondent also has not formulated a scheme so as to identify the beneficiaries and hence, he prays to give a direction. 6. On the other hand, learned Assistant Government Pleader appearing for respondents 1 to 3 contended that 1st respondent has to formulate a scheme and therefore, if the proposals are given by the 5th respondent to the Government, it will formulate the scheme and hence, he prays to issue a direction to the 5th respondent. 7. Learned standing counsel appearing for the 5th respondent contended that the scheme has to be recommended by the Government as per clause (10) of G.O.Ms.No.14, dated 05-02-2008 and hence, he prays to give a direction to the 1st respondent so as to identify the beneficiaries so that 5th respondent can implement the same. 8. The factual matrix is not in dispute. The petitioners claim to be the cultivators of the lands and the said lands were acquired by the Government. The Government accorded permission to the Principal Chief Conservator of Forests, Hyderabad for transfer of 231.94 hectares of forest land in Compartment No.37 of Chatakonda Reserve Forests of Kothagudem in favour of 5th respondent. One of the conditions in the said G.O. is that the user agency shall take up suitable rehabilitation of the people (cultivators), who are cultivators of land at the cost of User Agency as recommended by the State Government. This clause enables the Government to formulate a scheme for the purpose of benefiting the cultivators who were dispossessed. Even the 5th respondent who filed counter-affidavit stated that it is willing to take suitable steps for Rehabilitation and Re-settlement of the Scheduled Tribes and other Traditional Forest Dwellers who are affected by the diversion/transfer of forest land. Once the beneficiaries are recognized by the State Government as per the provisions prescribed under the Act, the 1st respondent has to formulate a scheme for the cultivators so that 5th respondent can implement the same. 9. Therefore, the Writ Petition is disposed of directing the 1st respondent to formulate a scheme for the purpose of Rehabilitation of real cultivators by duly identifying them and intimate the scheme to 5th respondent for taking further action. The 3rd respondent also shall take appropriate decision on the applications submitted by the petitioners to recognize their forest rights in respect of forest produce and podu cultivation and communicate the same to the 5th respondent. The said exercise shall be completed within 3 months from the date of receipt of a copy of this order. No order as to costs. --------------------- K.C.BHANU, J DATED: 16-11-2011 Hsd