THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.19107 of 2003 27-03-2003 Vadiyala Prabhakar Rao & others The Government of Andhra Pradesh, rep. by its Secretary, Forest Department & 2 others Counsel for the Petitioner : Sri R.Kameswara Rao Counsel for the Respondent: Sri K.G.Krishna Murthy, Addl. Advocate General <Gist : >Head Note: ?Cases referred: 1. (2008)9 Supreme Court Cases 368 2. (1998)9 Supreme Court Cases 1 3. (2003)2 Supreme Court Cases 107 ORDER:
The petitioners 1 to 9 being aggrieved by order dated 19.05.2003 passed by the Joint Collector, Khammam on their claim petition for deletion of their patta lands to an extent of Ac.600-00 in S.No.81 of Kalavalanagaram village in erstwhile Palvancha Taluk of Khammam District from reservation of forest block of Kalavalanagaram, approached this Court with this writ petition under Article 226 of the Constitution seeking Mandamus declaring the said order as illegal etc.,
2) The impugned order dated 19.05.2003 of the Joint Collector, Khammam in Case No.B2-6359/87 gives certain details of the events which lead the Joint Collector to pass the impugned order. An extent of Ac.717.18 guntas of land in S.No.81 of Kalavalanagaram village of Pinapaka Mandal was proposed for reserving in forest block, Kalavalanagaram. The said forest block was notified under Section 4 of the Hyderabad Forest Act I of 1355F vide G.O.Ms.No.409/GAD/GK/III/58, dated 27.10.1949 and published in the State Gazette No.21, dated 07.02.1950. Proclamation under Section 6 of the said Forest Act was issued by the then Forest Settlement Officer, Hyderabad on 14.06.1950 inviting claims and objections. While so, the claimants viz., Repaka Venkataratnam and Vadiyala Venkaiah filed claim petition before the Deputy Collector, Kothagudem claiming that they have got patta for Ac.600.00 in S.No.81 of Kalavalanagaram village and requesting for exclusion of the said patta land from the proposed forest block, Kalavalanagaram. According to the claimants, patta was granted to them in 1341F. The then Deputy Collector, Kothagudem disposed of the claim petition by order dated 06.11.1952 negativing claim of the claimants. Questioning the said order of the Deputy Collector, the claimants filed appeal before the Additional Collector, Khammam who decided the appeal against the Forest Department and in favour of the claimants. Subsequent to disposal of the appeal, it was informed that the Additional Collector was not having jurisdiction to hear the appeal, and so, the matter was referred to Board of Revenue, Hyderabad along with the entire file. The entire file was misplaced in the Board of Revenue, Hyderabad. The file also could not be traced either in Khammam Collectorate or in Forest Settlement Office, Khammam and also in Board of Revenue. Therefore, the Commissioner of Survey, Settlement and Land Records, Hyderabad in the letter dated 08.10.1984 directed de novo enquiry and to build up necessary record within six months. Thereupon, the conservator of Forests, Khammam in his letter dated 26.07.1987 requested the District Collector, Khammam to decide the claim of pattas included in Kalavalanagaram forest block and to request the Forest Settlement Officer, khammam to take further course of action in settling the patta claims in the proposed reserve forest block. With a view to get factual report, the matter was referred to the Sub-Collector, Kothagudem on 25.09.1987. The Sub-Collector, Kothagudem asked the Mandal Revenue Officer, Pinapaka to enquire into the matter and to send detailed report. The Mandal Revenue Officer, Pinapaka sent his report dated 07.01.1990 wherein it was stated that initial survey of the village Kalavalanagaram was in 1352 Fasli i.e., the year 1942 and that from 1343 Fasli i.e., the year 1933 an extent of Ac.600-00 was granted patta in favour of 12 persons including 2 claimants after collecting valuation of forest growth in S.No.81 and that in pahani of 1349 Fasli i.e., the year 1939 entire land of Ac.600-00 in S.No.81 was shown in the names of two persons who are Vadiyala Venkaiah and Repaka Venkata Ratnam who are the claimants and that transfer of patta from 12 persons to two persons might have been effected during the period between 1344 Fasli to 1348 Fasli and that relevant Faisal patties are not available for verification regarding transfer of patta in favour of the above two persons as Tahsil office records were destroyed in police action during the year 1948 and that pursuant to orders of Board of Revenue, Hyderabad dated 08.01.1955, the holding registers for the village were prepared and approved by Nazim-E-Jamabandi on 30.05.1953 adding Ac.154-36 guntas as Pote Kharab (unfit for cultivation) in S.No.81 and thereafter holding of Vadiyala Venkaiah and Repaka Venkata Ratnam became Ac.754-36 guntas showing them as pattadars in the revenue records. It is final conclusion of the Mandal Revenue Officer, Pinapaka in his report that entries in village records show patta in favour of Vadiyala Venkaiah and Repaka Venkata Ratnam jointly. It is also specifically noticed by the Joint Collector in his impugned order that the Mandal Revenue Officer, Pinapaka reported that vacant barren forest land was granted patta to the petitioners in 1343 Fasli i.e., the year 1933 after duly consulting forest authorities and after collecting forest growth valuation.
3) The Joint Collector in the impugned order gave a finding that "it is an established fact that the claimants and 10 others were granted pattas in Sy.No.81 of Kalavalanagaram village to an extent of Ac.50.00 each, totalling Ac.600.00. After some time, entries in the revenue record show that the entire land Ac.600.00 was mutated in favour of the claimants." But the Joint Collector observed that for mutation of Ac.600.00 of land in the names of two claimants, the claimants failed to produce any documentary evidence. The claimants were unable to produce records relating to mutation of names of two claimants in the place of 10 other pattadars, as all records in Tahsil office were admittedly destroyed in police action during the year 1948 by the Indian Government against the then Nizam Rule. Observation of the Joint Collector in the impugned order that the claimants could not prove their possession of the land during the entire period of 70 years, is wholly irresponsible and illegal. The Joint Collector though was passing the impugned order in the year 2003, should have seen whether the claimants were in possession of the claimed land of Ac.600.00 as on the date of publication of notification in the State Gazette dated 07.02.1950. When the above two claimants and 10 others were granted pattas for the land of Ac.600.00 in S.No.81 in the year 1933, the claimants have to show their possession of the land between the years 1933 and 1950 when the notification was published in the State Gazette. Report of Mandal Revenue Officer, Pinapaka undoubtedly goes to show that original 12 pattadars including two claimants were granted pattas for the land of Ac.600.00 in S.No.81 in 1343F/year 1933 and that transfer of pattas from 10 out of 12 pattadars was effected in favour of the two claimants Vadiyala Venkaiah and Repaka Venkata Ratnam jointly in between 1344F/year 1934 and 1348F/year 1938. Grant of pattas for the entire land of Ac.600.00 was not a gratuitous grant, but it was after collection of forest growth valuation therein and after duly consulting the forest authorities. It is contended by the Additional Advocate General that Section 24 of the Andhra Pradesh (Telangana Area) Land Revenue Act 1317F, all lands wherever situated are property of the Government. But, from the revenue records and from report of the Mandal Revenue Officer, Pinapaka, it is established in this case even to the satisfaction of the Joint Collector that the Government themselves granted pattas for the land of Ac.600.00 in S.No.81 in favour of the claimants and others. The said act of the Government in granting pattas for Ac.600.00 extinguishes proprietory rights of the Government in those lands and confers legal title to the pattadars for the said land.
4) Placing reliance on Rajinder Singh V. State of Jammu and Kashmir1 of the Supreme Court, the Additional Advocate General contended that revenue records confer no title on the party and that such entries are relevant only for fiscal purpose and substantive rights of title and of ownership of contesting claimants can be decided only by competent civil Court in appropriate proceedings. In the case before the Supreme Court, there was quarrel between two sets of persons for title to the property in question. Those two sets of persons are the person in whose favour the land was mutated in revenue records and children of the person in whose favour the land was allotted by the Government originally. When there are two rival claims between two private parties, the proper course would be to approach a civil Court for determination of title and it cannot be decided by the authorities under the tenancy Act where the dispute arose. Whereas in the present writ petition, there are no two rival claims by two private individuals or children of original 10 pattadars from whose names part of the land was transferred in the names of two claimants jointly. The dispute in this writ petition is between the claimants and the Government. From the revenue records and report of the Mandal Revenue Officer, Pinapaka, there is no dispute about grant of original pattas for Ac.600-00 of land in S.No.81 in the names of 12 individuals including two claimants and subsequent transfer of the entire land in the names of two claimants jointly in revenue records. There is no rival claim from any private person or persons in this case. Therefore, it is not necessary for the claimants to go before a civil Court and to establish their title to the land of Ac.600.00 vis--vis the Government who granted patta for the entire land of Ac.600.00. Revenue records undoubtedly reveal that the land of Ac.600.00 ceased to be Government land and became patta land of the claimants. The Government is estopped from contending that the land of Ac.600.00 is still a Government land which can be included in Kalavalanagaram forest block. Therefore, the impugned order of the Joint Collector is ex facie bad as it runs contrary to the revenue records. Faisal Patti of 1343F/year 1933 perused by the Joint Collector discloses that Ac.600.00 in S.No.81 had been approved by the Nazim-E-Jamabandi under Ain Izafa (Net increase) during Jamabandi of 1342F in favour of 12 persons and delivered possession to the assignees with the consent of Forest Department officials. The said exercise extinguished right of the Government and more particularly of the Forest Department in the said land of Ac.600-00 in S.No.81.
5) It is contended by the Additional Advocate General that the writ petition is not maintainable as there is right of appeal against the impugned order under Section 13 of the Andhra Pradesh Forest Act, 1967 (in short, the 1967 Act) to the District Court where the claim is rejected wholly or in part. On availability of alternative remedy, the Supreme Court in Whirlpool Corporation V. Registrar of Trade Marks2 and Harbanslal Sahnia V. Indian Oil Corporation3 held that in spite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies viz.,
(i) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is failure of principles of natural justice; or
(iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
In any event, right of appeal provided under Section 13 of the 1967 Act cannot be availed by the petitioners who are legal representatives of the claimants, as the notification reserving the land as forest block of Kalavalanagaram was not issued under the 1967 Act. The impugned order of the Joint Collector reads that the notification was issued under the Hyderabad Forest Act I of 1355F (in short, the 1355F Act). When this Court queried whether the said notification published in the State Gazette dated 07.02.1950 is available or is lost, it was produced by the 1st respondent along with counter affidavit. Surprisingly, the notification dated 06.02.1950 published in the Gazette produced by the Government in this Court was issued by the Government under Section 7(1) of the Hyderabad Forest Act 1326F (in short, the 1326F Act). It is contention of the Additional Advocate General before this Court that proceedings relating to reserve forest block of Kalavalanagaram started with the notification issued by the Government under the 1326F Act. But, by the date of notification on 06.02.1950, the 1326F Act was not in force, as it was specifically repealed by Section 85 of the 1355F Act. The said 1355F Act was passed in the year 1945 corresponding to 1355F itself and it came into force in the same fasli year after receiving assent of H.E.H The Nizam and published in Zareeda (Gazette) in the same fasli year. By the date of notification of Kalavalanagaram reserve forest block i.e., by 06.02.1950, the 1326F Act was not in force and the 1355F Act was in force repealing the earlier Act. The notification which was issued under the 1326F Act in the year 1950 is wholly without jurisdiction and ultra vires. It is most unfortunate that the Joint Collector, Khammam also was not able to notice that the notification in respect of which the claim petition was filed by the claimants was issued under the 1326F Act and not under the 1355F Act. The notification dated 06.02.1950 issued under the 1326F Act is non est in the eye of law. When the proceedings in which the claim petition was filed by the petitioners are non est in the eye of law and are ultra vires, the contention that there is alternative remedy available to the petitioners by way of appeal, falls to the ground. Viewed from any angle, both on merits as well as legal technicalities, the petitioners have made out good case in this writ petition for them. When the notification dated 06.02.1950 does not survive after legal scrutiny, the impugned order of the Joint Collector is without jurisdiction.
6) In the result, the writ petition is allowed making Rule Nisi absolute quashing the impugned order dated 19.05.2003 passed by the Joint Collector, Khammam in case No.B2-6359/87 and declaring that the proceedings relating to reserving Ac.600-00 in S.No.81 of Kalavalanagaram village as forest block of Kalavalanagaram are ultra vires and non est in the eye of law. No costs. _______________________________ SAMUDRALA GOVINDARAJULU, J Dated 27th March, 2012