IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 11419 of 2006 Between: 1 Inuganti Ramakrishna Ranga Rao, S/o.Late Papa Rao, R/o.Chintalapudi Town and Mandal, West Godavari District. 2 Syed Nasurulla Sahed, S/o.Nurulla Sahed, R/o.Raghavapuram Village, Chintalapudi Mandal, West Godavari District. 3 Konakalla Rama rao, S/o.Sreeramulu, R/o.Chintalapudi Town and Mandal, West Godavari District. 4 Chilukabathula Dharmayya, S/o.Pullaiah, R/o.Mulagalampadu Mandal, Bhogolu Post, Lingapalem (M), West Godavari District. 5 Kuntamukkala Venkata Krishna Rao, S/o.Durga Sarveswara Rao, R/o.Polavaram Village, Vissannapet (M), W.G.District. 6 Katikaneni Sreebnivasa Jagannatha Rao, S/o.Venkateswara Rao, R/o.Patchanagaram Village, Lingapalem Mandal, West Godavari District. 7 Syed Abdul Ghouse, S/o. Syed Meera Saheb, R/o.Chintalapudi Town and Mandal, West Godavari District. 8 Md.Umar, S/o.Jan Mohammed, R/o.Chintalapudi Town and Mandal, West Godavari District. 9 Smt.Urakaranam Lalita Indukumari, W/o.Hanumantha Rao, R/o.Polavaram Village, Vissannapet (M), W.G.District. 10 Gouravarapu Venkateswara Rao, S/o.Kotaiah, R/o.Pothunur Village, Chintalapudi Mandal, West Godavari District. 11 Ravu Satyanarayana Rao, S/o.Venkat Rao, R/o.Pothunur Village, Chintalapudi Mandal, West Godavari District. 12 Allamsetti Venkatachalam, S/o.Venkayya, R/o.Pothunur Village, Chintalapudi Mandal, West Godavari District. ..... PETITIONER(S) AND 1 The Government of A.P., Rep by its Prl.Secretary to Government, Forest, Environment Science & Technology Department, Secretariat Buildings, Hyderabad. 2 The Principal Chief Conservator of Forests, Hyderabad. 3 The Forest Chief Conservator of Forests, Hyderabad. 4 The Central Government, Rep by its Secretary, Enviornment and Forest Dept, New Delhi. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to call for the connected records from the respondent Nos.1 to 3 and issue an appropriate Writ, Order or direction preferably a Writ in the nature of Mandamus directing the State Government of A.P, the First respondent No.1 herein to make an application to the Central Government, the respondent No.4 herein seeking its approval to exclude 342.50 acres of Petitioners patta land in Sy.No.537/2, 3 and 4 situated at Bhogolu Village, Chintalapudi mandal, West Godavari District from the reserved forest of Bhogolu Village and to direct the Central Government to consider the said application of the State Government and to pass appropriate order within a reasonable time and pass such other order or orders. Counsel for the Petitioner:MR.N.NARASIMHA RAO Counsel for the Respondent No.: GP FOR FORESTS The Court made the following : THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.11419 of 2006 ORDER: 1 Petitioners filed the present Writ Petition initially seeking a direction to the first respondent to make an application to the fourth respondent for approval to exclude Ac.342.50 of patta land belonging to the petitioners in Sy.No.537/2, 3 and 4 situated at Bhogolu village, Chintalapudi Mandal, West Godavari District from the reserved forest of Bhogolu village and consequently to direct the fourth respondent to consider the application to be made by the first respondent and pass appropriate orders. 2 The case of the petitioners is that as early as in the year 1948 the Government of Andhra Pradesh had taken possession of forest area of 4900 acres situated at Bhogolu village and handed over the said land to the Forest Department on 01.10.1952. Subsequently the entire Ac.4900 was notified as forest under section 26 of the Madras Forest Act, 1882 and thereafter in the year 1959 the forest department got the said land suryed and after excluding Ac.800 of patta land proposed to notify the remaining land of Ac.4100 as reserved forest and accordingly issued the notification on 29.01.1970 under Section 4 of the A.P. Forest Act, 1967 and appointed the third respondent to enquire into the claims, who in turn published a notification on 06.05.1977. According to the petitioners, first petitioner along with two others filed petitions before the third respondent claiming that lands to an extent of Ac.94.00, Ac.135.82 and Ac.112.63 in Sy.Nos.537/3, 537/4 and 527/2 respectively as their patta lands and requested to exclude the same from the proposed reserved forest. Subsequently they sold some extents of land to the third parties. The third respondent, after conducting a detailed enquiry held that the claimants have established their claim over the land and further held that as the area in question attracts the provisions of the Forest Conservation Act, 1980 and sanction of the Government of India has to be obtained for eliminating any land from the proposed block and hence requested the Secretary, Forest and Agricultural Department, Andhra Pradesh to obtain necessary orders of the Central Government for eliminating the patta land of Ac.342.50 from the forest block vide his letter No.CA 1/871/72 B, Dated 18.12.1984. 3 Petitioners further contend that the Divisional Forest Officer, Eluru had filed A.S.No.107 of 1985 in the Court of the District Judge, West Godavari, Eluru challenging the letter of the third respondent dated 18.12.1984 contending that the third respondent did not give him an opportunity to contest the claim petitions. However, the said A.S.107 of 1985 was dismissed vide Judgment dated 17.10.1988. Aggrieved thereby, the Divisional Forest Officer approached this Court and filed W.P.No.12394 of 1989 seeking a declaration that the proposal of the third respondent dated 18.12.1984 as confirmed by the District Judge in A.S.No.107 of 1985 dated 17.10.1988 is not an order or award within the meaning of Section 10 of the A.P. Forest Act. That Writ Petition was dismissed by order dated 04.12.1995. Assailing that order The Divisional Forest Officer carried the matter in W.A.No.32 of 1998, which also was dismissed vide order dated 25.01.2002. Subsequent to that, the first respondent by his Memo No.2117/FOR.1 (1)/1997 dated 01.04.2003 requested the second respondent to obtain and furnish the proposals as required under Section 2 of the Forest Conservation Act 1980 so as to obtain prior permission from the Government of India to exclude the land of the petitioners to an extent of Ac.342.50 of Bhogolu village, West Godavari District from the proposed forest block. But, as no action has been taken in that regard, the petitioner approached this Court and filed the present Writ Petition. 4 A detailed counter affidavit is filed on behalf of the second respondent stating that the third respondent has communicated the claim petitions of 18 individuals, which were received in the office of the second respondent on 15.10.1984 and requested to file counters and that the third respondent had taken up the enquiry on 20.10.1984 hurriedly without waiting for the counter from the department and inasmuch as the claimants before the third respondent claim that they purchased the lands from the original claimants and as the claim petitions of the original claimants were not received by the Divisional Forest Officer, Eluru and as the subsequent claimants were vendees to the original claimants, it needs sufficient time for thorough examination of the claims and to file counters by the department and that until and unless the rights over the lands are established and claims were admitted by the third respondent under the provisions of Andhra Pradesh Forest Act 1967, no changes of classification in the revenue records should be made but it was done unauthorisedly and the third respondent submitted proposals directly to the Government of Andhra Pradesh to get permission of the Government of India on 18.12.1984 without at least marking a copy of the same to the Divisional Forest Officer, Eluru or his higher ups. It is further contended that the Government of Andhra Pradesh, vide Memo No.2117/For-I(i)/97 dated 01.04.2003 had issued instructions to the first respondent to furnish proposals U/s. 2 of the Forest (Conservation) Act, 1980 for exclusion of Ac.342.50 of land from Bhogole village of West Godavari District and that as one Mr. K.S. Rao, Member of Parliament, submitted a representation to the Government of Andhra Pradesh stating that the claim of the first petitioner herein and the documents produced by him claiming the land in question as his patta land were false and based on tampered records, and requested the Government to withhold the Government Orders and consequently the Government has stayed the orders dated 01.04.2003 by Memo No.7973/For-I(i)/2004-I, Dated 11.10.2004 and simultaneously ordered to cause an enquiry into the matter by the Chief Conservator of Forests (Vigilance), who, in turn conducted an enquiry and found that the record of the Mandal Revenue Officer has been tampered and found the claim of the first petitioner before the third respondent is fictitious and untenable and suggested for a de novo enquiry by the Forest Settlement Officer in view of the dimensions emerging in the enquiry and the final orders are yet to be received from the Government. Therefore, in the light of the above circumstances, the plea of the petitioner to take action as per the Government Memo No.2117/For-I/(i)/97, dated 01.04.2003 is not tenable and ultimately prayed this Court to dismiss the Writ Petition. 5 In view of the stand taken by the second respondent in his counter affidavit, the first petitioner filed W.P.M.P.No.29536 of 2006 contending that the first respondent has no power or jurisdiction to pass order of stay dated 11.10.2004 as the Memo dated 01.04.2003 was issued to implement the order dated 19.12.1984 of the third respondent pursuant to an enquiry held under Section 8 read with Section 10(1) of the A.P. Forest Act, 1967, which was confirmed on appeal by the District Court, West Godavari under Section 13(2) of the said Act, and the same was confirmed by this Court in W.P.No.12394 of 1989 dated 04.12.1995 and in W.A.No.32 of 1999 dated 25.01.2002, but, however, in order to obviate any technical objection they filed the present W.P.M.P.No.29536 of 2006 challenging the memo dated 7973/For.I(1)/2004 Dated 11.10.2004 and sought for amendment of the prayer in the Writ Petition as follows: “For the aforesaid reasons, the petitioners pray that this Hon’ble court may be pleased to issue a writ, in the nature of a Writ of Mandamus or any other appropriate Writ, direction or order declaring the Memo No. 7973/For.I (1)/2004 Dated 11.10.2004 issued by the Special Secretary to Government, Environment, Forest, Science & Technology (For.I) Department, the 1st respondent herein, as illegal and void and direct the respondents to act in accordance with Memo.2117/For.I(i)/1997, dated 01.04.2003 issued by the Principal Secretary to Government, Environment Forest Science and Technology Department, the 1st respondent herein, and further direct the Government of India, the 4th respondent herein, to consider and pass appropriate orders under Section 2 of the Forest (Conservation) Act, 1980 as proposed by the Forest Settlement Officer, Nellore, the 3rd respondent herein; and pass such further or other orders as this Hon’ble Court may deem fit and proper in the circumstances of the case”. 6 Heard the learned counsel for the petitioners and the learned Government Pleader for Forests. 7 On appreciation of both oral and documentary evidence put forth by the claimants only the third respondent herein had categorically held that the claim of the claimants is genuine and their lands, being patta lands, have to be excluded from the proposed forest block. But as the proposed block attracts the provisions of the Conservation of Forest Act and requires prior permission from the Government of India, the third respondent did not pass any award and had rightly submitted his report to the Government of Andhra Pradesh for getting necessary permission from the Central Government of India. Assailing the validity of the order of the third respondent, the Divisional Forest Officer filed A.S.No.107 of 1985 before the District Judge, West Godavari wherein the District Judge had categorically rejected the contention of the Divisional Forest Officer, Eluru that he was not given any opportunity to represent his case as the third respondent had informed about the claims to the Divisional Forest Officer and requested him to file his counter and it also emerged out of the record that the third respondent inspected the disputed area on 20.10.1984 along with the Divisional Forest Officer. Therefore, the contention of the Divisional Forest Officer that he was not given opportunity to contest the claim of the petitioners and other claimants does not gains significance and the same was negatived in the Writ Petition as well as in the Writ Appeal. When there is cogent documentary evidence that the claim of the claimants is genuine available on record, the Divisional Forest Officer is not justified in knocking the doors of various authorities time and again taking different pleas on unsustainable grounds. Further, the communication sent by the third respondent dated 18.12.1984 to the Government of Andhra Pradesh is only a letter stating that the claim of the claimants is genuine and is well founded and since their lands being patta lands issued way back in 1960s, and as the area in question attracts the provisions of the Forest Conservation Act, 1980 of the Government of India, sanction of the Government of India has to be obtained for eliminating any land from the proposed block. Further, it should be taken note of the averment made by the second respondent in the counter affidavit that after dismissal of the W.A.No.32 of 1998 on 25.01.2002 the second respondent was informed that the Government has consulted the Secretary Legal affairs and the Advocate General in the matter and they opined that there is no case for going to the Supreme Court of India challenging the orders passed in W.A.No.32 of 1998. In that view of the matter, the first respondent, having come to the above conclusion, is also not justified in making the petitioners kept waiting for this long period of time without initiating action in this regard. 8 This Court is also conscious about the jurisdiction that has to be exercised under Article 226 of the Constitution of India. In the present case the only exercise that can be done sitting under Article 226 of the Constitution is to have judicial review. When several authorities including this Court have categorically held that the order passed by the third respondent is legal and valid, it is not again for this Court to exercise its power of judicial review and hold that the said order is behind the back of the second respondent particularly when he was also a party during the course of inspection that took place on 20.10.1984. 9 In the light of the discussion made above, this Court is of the view that since the claim of the petitioners was found genuine and since petitioners were already given pattas for the land to an extent of Ac.342.5 in Sy.No.537/2, 3 and 4 situated at Bhogolu village, Chintalapudi Mandal, West Godavari District, their rights have to be protected by all means and so their patta lands have to be excluded from the proposed forest block, and question of denotifying the said land does not arise. Accordingly the Writ Petition is allowed and the rule nisi is made absolute. The first respondent is hereby directed to take necessary steps in this regard. No order as to costs. ----------------------------- SRI T.G.K, J. 19.01.2009 kvsn