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2020 DIGILAW 57 (AP)

S. Gnana Keerthi v. State of Andhra Pradesh

2020-01-24

M.SATYANARAYANA MURTHY

body2020
JUDGMENT : M Satyanarayana Murthy, J. This writ petition under Article 226 of Constitution of India is filed, challenging the action of respondents in interfering with possession and business of petitioner, in the stall at Tirumala, 7th mile, Prakruthi bata and refreshment center, declare the same as illegal, arbitrary and unconstitutional, consequently issue direction, not to interfere with the business of petitioner, till the petitioner is evicted by due process of law. 2. The respondents allotted a small stall at Tirumala, 7th mile, Prakruthi bata and refreshment center, first ghat road to father of petitioner on 04.09.2010, on monthly rental basis, for an amount of Rs.6,032/-. Her father was running the stall till the date of his death and paid monthly rent to Forest Department. Her father died on 01.07.2012 at Tirumala ghat road. After demise of her father, petitioner being elder daughter, to her parents, discontinued her studies, started running the stall, to maintain the family. Respondents also issued order, allotting the stall in her favour on 10.08.2012. Copy of resolution dated 10.08.2012, allotting stall in favour of petitioner, is placed on record. 3. From the date of allotment, till the date of filing of this writ petition, she is in possession and enjoyment of the stall, running the stall by paying enhanced monthly rent to respondents. On 01.04.2018, respondents passed resolution requiring the petitioner to deposit rental amount into account of Forest Department with Andhra Bank, account No.103310100 119855- Addl. PCCF WLM Circle at Tirupati. Accordingly, petitioner is paying rent amount to Forest Department, without any delay or due till date. Copies of challans, rent deposit slips etc., are annexed to the petition. The petitioner paid an amount of Rs.15,000/- to the credit of Forest Department account till June, 2019 and all of sudden, respondents demanded Rs.25,000/- from August, 2019 without any notice or without any appropriate proceedings issued to her. 4. While the matter stood thus, all of sudden, on 18.09.2019, some persons, claiming to be acting as per instructions of respondent Nos.2 to 4, visited the stall and orally instructed the petitioner to vacate the stall immediately. Petitioner's family is landless poor and only source of income is income from the stall. 4. While the matter stood thus, all of sudden, on 18.09.2019, some persons, claiming to be acting as per instructions of respondent Nos.2 to 4, visited the stall and orally instructed the petitioner to vacate the stall immediately. Petitioner's family is landless poor and only source of income is income from the stall. If Forest authorities insisted her to vacate the premises, for non-payment of huge amount as claimed by them, petitioner will be put to serious loss, as she invested huge amount to purchase food articles and other goods for running the stall. She has been in possession and enjoyment of the property on the basis of allotment and paying rent as per resolution dated 10.08.2012. Therefore, her possession cannot be interfered by respondents without following due process of law, any interference is nothing but violation of Articles 14, 19 and 21 of Constitution of India. Attempt to dispossess the petitioner without issuing any prior notice and without any reason for proposed dispossession is illegal and arbitrary, requested to pass an order. 5. Respondents filed counter, along with vacate petition. Second respondent contended that writ petition is not maintainable either on facts or on law, liable to be dismissed at the stage of admission itself. Second respondent denied the very allotment of shop to father of petitioner for running refreshment center and stall under the scheme of Prakruthi bata at 7th mile, Tirumala, while contending that the document enclosed with the writ petition is forged one and not issued by Vana Samrakshana Samithi, Mangapuram E.D.C Management Committee. Second respondent also denied issue of proceedings dated 10.08.2012 and it is a bogus one and not resolved by Vana Samrakshana Samithi, Mangapuram E.D.C Management Committee. 6. The specific contention of second respondent is that the documents are concocted for the purpose of filing this writ petition, petitioner is never in possession and running the stall since 2012, petitioner was never inducted either as tenant or lease holder or licencee under the respondents. 6. The specific contention of second respondent is that the documents are concocted for the purpose of filing this writ petition, petitioner is never in possession and running the stall since 2012, petitioner was never inducted either as tenant or lease holder or licencee under the respondents. In order to have proof of payment of amount in support of her false claim of possession and for filing the same before this Court, petitioner herself intentionally deposited an amount of Rs.25,000/- to the credit of account of Additional Chief Conservator, Forest Department, only for the period from 01.07.2019 to 12.09.2019, no resolution was passed by Mangapuram ECO Development Committee on 01.04.2018 as stated by petitioner, the documents filed along with writ petition are created. 7. Second respondent denied the very allotment and petitioner's continuation in possession and enjoyment of stall at 7th mile, Prakruthi bata, while contending that the documents filed along with write petition are forged. 8. The core contention of second respondent is that the stall in question was erected in prohibited area, as the said area is notified as Sri Venkateswara Wild Life Sanctuary under Wild Life Protection Act, 1972 (for short Act, 1972) vide G.O.Ms.No.59, EFS & T, (FOR-III) Dept., dated 13.05.1998. To be precise the said location falls under Compartment No.124 of Tirupati Hill Reserve Forest of Alipiri Beat, S.V National Park, Tirupati Range, Sri Venkateswara Wild Life Sanctuary. None of the respondents are allowed to grant permission to erect stall in Wild Life Sanctuary. Hence, the question of permitting the petitioner to erect stall in Wild Life Sanctuary by respondents would not arise. According to Section 33 (a) of Act, 1972, no constructions for commercial purpose were to be permitted inside the Zone. Therefore, petitioner is not entitled to claim any relief in the writ petition, since the petitioner approached the Court with forged documents i.e. resolutions passed by Mangapuram ECO Development Committee allegedly. Since the resolution book of Mangapuram ECO Development Committee is consisting of 36 horizontal lines in each page, but resolution dated 10.08.2012 is consisting only 23 horizontal lines. Adding to these conspicuous facts, there are no signatures of either Forest Section Officer or Forest Beat Officer on the resolution dated 10.08.2012. Similarly resolution dated 01.04.2018 is equally forged, no such resolution was found placed in the resolution book of Mangapuram ECO Development Committee. Adding to these conspicuous facts, there are no signatures of either Forest Section Officer or Forest Beat Officer on the resolution dated 10.08.2012. Similarly resolution dated 01.04.2018 is equally forged, no such resolution was found placed in the resolution book of Mangapuram ECO Development Committee. The petitioner herself created resolution, in order to claim right in the writ petition and copies of original resolution book for relevant period i.e. 04.09.2010, 10.08.2012 and 01.04.2018 are filed along with counter, for perusal. 9. The Executive Officer, Tirumala Tirupati Devasthanams, Tirupati is having no control over the notified area under Act, 1972, accustomed to issue temporary hawker licence to vendors, permitting certain people to do photography, to sell seasonal fruits at foot path, 7th mile. Even in the proceedings, neither the name of father of petitioner nor the name of petitioner was listed. The temporary D & O Trade licence were renewed on the names of one N. Narayana, S/o.Late N. Ramaiah and B. Rajeswari, W/o.Late B.V Subbaiah vide proceedings ROC No.HE5/74/HO/TTD/TML/2017, dated 24.05.2017. Even they were also permitted to sell limited quantity of fruits with single bamboo basket. Hence, the petitioner is stranger, even as hawker licencee or for temporary D & O licences issued by T.T Devasthanams. 10. Instructions have been issued to Divisional Forest Officer, Wild Life Management Division, Tirupati by Chief Conservator of Forests, Wild Life Management Circle, Tirupati vide RC No.382/2019/M1, dated 21.09.2019 to inspect the shops situated at Papavinasanam area and ghat road 7th mile to ascertain, who issued permissions to them, along with period of lease if any and instructed to vacate unauthorized shops at the earliest point of time. The Forest Range Officer, S.V National Park, Tirupati conducted enquiry and submitted report to Divisional Forest Officer, Wild Life Management Division, Tirupati, submitting names of hawkers who are running business at 7th mile ghat road. Even in that list, the name of petitioner or name of petitioner's father is not found. Hence, the petitioner is disentitled to claim any discretionary relief under Article 226 of Constitution of India, requested to dismiss the writ petition. 11. Petitioner filed reply to the counter, reiterating the contentions made in the affidavit filed along with the writ petition, while denying the alleged forgery of documents. 12. Hence, the petitioner is disentitled to claim any discretionary relief under Article 226 of Constitution of India, requested to dismiss the writ petition. 11. Petitioner filed reply to the counter, reiterating the contentions made in the affidavit filed along with the writ petition, while denying the alleged forgery of documents. 12. During hearing, the learned counsel for petitioner Sri G. Venkata Reddy, contended that the documents produced by petitioner though allegedly forged by petitioner, on comparison of documents produced by petitioner with documents produced by respondents, the falsity in the plea set up by the respondents can be found, requested to compare the documents filed by petitioner and respondents, to accept the contention of petitioner. Those documents filed by respondents also advances his case to substantiate that petitioner was granted permission by respondents, to continue business in the stall. Therefore, respondents are not entitled to remove the stall without any prior notice to the petitioner, having granted licence to carry on business, on payment of monthly rent and the action of respondents is highly arbitrary and illegal. 13. Whereas, the learned Government Pleader for Forests, placed on record several documents, including resolutions passed by Mangapuram ECO Development Committee, claiming that they are extracts from original resolution book to disprove the contention of petitioner and to prove that they are forged. When the petitioner approached the Court, claiming discretionary relief under Article 226 of Constitution of India, petitioner is disentitled to claim such discretionary relief, when documents are created or forged. Apart from that the petitioner was never in possession and enjoyment of property, no proceedings were issued allotting shop either to her father of to her, after demise of her father, to carry on any such business at 7th mile of Prakruthi bata and produced copy of Government Order and location of area along with resolutions passed by the Authorities, requested to dismiss the petition, since, occupation of any space in the notified area under Act is illegal. 14. The basis for the claim of petitioner is that her father was allotted shop by respondents is resolution of Mangapuram ECO Development Committee, dated 04.09.2010 on monthly rent of Rs.6,032/-. A copy of resolution dated 04.09.2010 is placed on record to substantiate her contention. 14. The basis for the claim of petitioner is that her father was allotted shop by respondents is resolution of Mangapuram ECO Development Committee, dated 04.09.2010 on monthly rent of Rs.6,032/-. A copy of resolution dated 04.09.2010 is placed on record to substantiate her contention. But second respondent denied the very grant of permission by resolution dated 04.09.2010 to the father of petitioner for running Janatha Canteen by S. Sahadevaiah, with a view to provide livelihood to two persons, on payment of rent at Rs.6,032/- per month, besides bearing electricity charges by S. Sahadevaiah. Petitioner is the daughter of said Sahadevaiah. Respondents contended that resolution dated 04.09.2010 is created for the purpose of this writ petition, alleged allotment of shop in favour of father of petitioner by resolution dated 04.09.2010 is forged document, produced extract of resolution, from the resolution books of Vana Samrakshana Samithi. The contents of resolution are identical, except enlargement of font size while taking photostat by petitioner. Whereas, the resolution dated 04.09.2010, produced by respondents is original font, without any enlargement. When, I look at the contents of both documents and signatures contained thereon, they are identical in each letter. The document produced by petitioner i.e. resolution dated 04.09.2010 and resolution produced by respondents dated 04.09.2010, as if it was taken as extract from the resolution book of Vana Samrakshana Samithi, clearly shows that a resolution was passed, granting permission to S. Sahadevaiah to run refreshment stall who conducted business by name Janatha canteen for some time, on payment of monthly rent of Rs.6,032/-. 15. Similarly by resolution dated 10.08.2012, after death of father of petitioner i.e. S. Sahadevaiah, shop was allotted to S. Gnana Keerthi/petitioner herein to run refreshment stall on payment of rent. Copy of resolution, in support of her contention, is placed on record which is enlarged print and respondents also produced copy of resolution dated 10.08.2012, which is true photostat of document. The hand writing, contents and dates etc., in both the photostat copies of resolution produced by petitioner and respondents are one and the same. Therefore, alleged allotment of stall to petitioner, consequent upon death of her father S. Sahadevaiah is substantiated by material, including material produced by second respondent along with counter. 16. The hand writing, contents and dates etc., in both the photostat copies of resolution produced by petitioner and respondents are one and the same. Therefore, alleged allotment of stall to petitioner, consequent upon death of her father S. Sahadevaiah is substantiated by material, including material produced by second respondent along with counter. 16. Petitioner also further contended that Mangapuram ECO Development Committee, by resolution dated 24.08.2010, fixed rent at Rs.6,000/- per month, this resolution was signed by the members of the Committee, so also Forest Beat Officer, Alipiri and Forest Section Officer, Tirupati on 24.08.2010 itself. But respondents now resailing from their earlier resolution contended that they were forged. But this fact is not substantiated by any material. On the other hand, extracts of resolutions produced by petitioner and respondents are identical, except enlargement of font. Even the resolution dated 24.08.2010, produced by respondents contains signatures of FBO and FSO of Alipiri Beat and Tirupati respectively. Hence, the contention of second respondent that petitioner approached the Court, based on forged resolutions passed by Mangapuram ECO Development Committee is liable to be rejected. Accordingly the same is rejected. 17. When the petitioner was permitted and allotted refreshment stall at 7th mile, Prakruthi bata, respondents cannot now contend that no allotment was made in favour of father of petitioner and petitioner after death of her father, while contending that the documents produced by petitioner are forged. Respondents are State officials, they are not expected to raise such defence which is unsubstantiated by any material. On the other hand, the material, they produced, supports the case of petitioner that stall was allotted to her father initially by resolution dated 04.09.2010, consequently upon death of her father it was allotted to petitioner on payment of monthly rent of Rs.6,000/-, she was not evicted from the stall by following any procedure, contemplated under the provisions of any Act. Therefore, she cannot be evicted from refreshment stall, without determining or terminating the tenancy, by following due process of law, such act of respondents is highly illegal and arbitrary, this Court while exercising power of judicial review can interfere with such illegal action of respondents. 18. Respondents are only Governmental Agencies, prosecuting the proceedings as compulsive litigant, their action must be fair, in view of litigation policy framed by State Government. 18. Respondents are only Governmental Agencies, prosecuting the proceedings as compulsive litigant, their action must be fair, in view of litigation policy framed by State Government. The State is expected to be a model litigant maintaining ethical standards in prosecuting the litigation being a compulsive litigant. The Government of India in view of certain observations made in various Judgments by the Apex Court in State of Punjab v. M/s.Geeta Iron & Brass Works Ltd., (1978) 1 SCC 68 and Chief Conservator of Forest v. Collector, (2003) 3 SCC 472 adopted National Litigation Policy, but it did not yield fruitful results and it totally failed. But, the Government of India being a model litigant is under obligation in common law has not always been clear, but the written policies seek to provide clarity and guidance and what conduct is required of a model litigant. Behind each of the duties is an overarching duty to act honestly, fairly, with complete propriety and in accordance with the highest professional standards. It goes beyond the requirement for lawyers to act in accordance with their ethical obligations and merely acting honestly or in accordance with law and court rules. The policies all variously refer to the following specific duties, some of which have long been recognized by the court: a) Dealing with claims promptly; (b) Minimising delay in proceedings'; (c) Making an early assessment of the prospects of success and potential liability in claims; (d) Paying legitimate claims without litigation; (e) Acting consistently in the handling of claims and litigation; (f) Endeavouring to avoid, prevent or limit the scope of litigation and participating in alternative dispute resolution where appropriate; (g) Minimising costs in proceedings; (h) Not taking advantage of a claimant who lacks the resources to litigate a legitimate claim; (i) Not taking technical points unless the agencies interests would be compromised; (j) Not understanding and pursuing appeals unless there are reasonable prospects for success or the appeal is otherwise justified in the public interest; and (k) Apologising when the Government or its lawyers have acted wrongfully or improperly. These guidelines as recognized by Common Wealth Countries, the litigation in the courts would be minimized though the Government of India or State adopted Litigation Policy, but it did not serve any useful purpose. These guidelines as recognized by Common Wealth Countries, the litigation in the courts would be minimized though the Government of India or State adopted Litigation Policy, but it did not serve any useful purpose. Therefore, the Government being litigant is at least expected to follow the ethical issues and practical considerations while dealing with a citizen in litigation before the Court and the government is expected to be honest litigant, to minimize the litigation, instead of it, second respondent being public Officer as a litigant not acting fairly and prosecuting proceedings. 19. The Andhra Pradesh State also adopted State Litigation Policy dated 30.08.2011 and certain guidelines have been issued with objects mentioned in second para of litigation policy. The main objects are to manage and conduct litigation in a coordinated and time bound manner; ensure that strong cases are won and weak cases are not pursued needlessly; reduce over all government litigation in courts thereby providing relief to the judiciary etc., and also issued certain directions to prevent and control avoidable litigation and settlement of disputes in alternative dispute resolution system, guidelines for filing of appeals. But without keeping in mind, the litigation policy, framed by State dated 30.08.2011, government agencies and authorities are proliferating the litigation by evasive and un-substantive pleas before court, thereby increasing litigation in the courts, which is contrary to guidelines issued by Apex Court in the judgments referred supra. Instead of following guidelines issued under State Litigation Policy, second respondent set up a frivolous and vexatious plea, totally in unfair manner. Therefore, contention of second respondent that petitioner produced forged documents i.e. resolutions of Mangapuram ECO Development Committee is hereby rejected. 20. Though the petitioner is able to substantiate her contention that she is in possession and carrying on business in refreshment stall at 7th mile, Prakruthi bata, by virtue of resolutions referred above, her lease was not determined or terminated by respondents till date. Therefore, she is deemed to be continuing in possession and enjoyment, in the absence of termination or determination of lease. Evicting the petitioner from the possession of property without following due process of law, her contention that she is continuing in possession and enjoyment, carrying on business in refreshment stall is to be accepted. Accordingly, the contention of petitioner is accepted. 21. Evicting the petitioner from the possession of property without following due process of law, her contention that she is continuing in possession and enjoyment, carrying on business in refreshment stall is to be accepted. Accordingly, the contention of petitioner is accepted. 21. One of the major contention, raised before this Court by second respondent is that 7th mile of Prakruthi bata is part of Sri Venkateswara Wild Life Sanctuary, notified by G.O.Ms.No.59 EFS & T (FOR.III) Department, dated 13.05.1998, it is part of Compartment No.124 of Tirupati Hill reserve forest of Alipiri Beat, S.V National Park range, within the area no constructions are permitted, in view of Section 33 (a) of Act, 1972. Despite notification vide G.O.Ms.No.59 dated 13.05.1998, father of petitioner S. Sahadevaiah was permitted to run refreshment stall by resolution of Mangapuram ECO Development Committee, dated 04.09.2010, after his death, it was allotted to petitioner by resolution dated 10.08.2012, fixed rent at Rs.6,000/- by resolution dated 24.08.2010, petitioner paid rent to the credit of Account No.103310100 19855- Addl. PCCF WLM Circle at Tirupati. If really petitioner was not tenant in occupation of premises within Wild Life Sanctuary, how respondents granted permission not only to petitioner, but also to other persons referred in resolutions, is not explained by respondents with any plausible explanation. Apart from that when petitioner is running refreshment stall, since long time, respondents cannot dispossess her under the guise of declaration of area as Wild Life Sanctuary vide G.O.Ms.No.59 dated 13.05.1998, even if it is part of Compartment No.124 of Tirupati Hill reserve forest of Alipiri Beat, S.V National Park range, still procedure prescribed under Act, 1972 is to be followed, consequently, petitioner cannot be dispossessed without following due process of law. 22. The learned Government Pleader for Forests would draw the attention of this Court to Section 33 of Act, 1972, which deals with control of sanctuaries. The Chief Wild Life Warden shall be the authority who shall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary (a) may construct such roads, bridges, buildings, fences or barrier gates and carry out such other works as he may consider necessary for the purposes of such sanctuary. The Chief Wild Life Warden shall be the authority who shall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary (a) may construct such roads, bridges, buildings, fences or barrier gates and carry out such other works as he may consider necessary for the purposes of such sanctuary. Provided that no construction of commercial tourist lodges, hotels, zoos and safari parks shall be undertaken inside a sanctuary except with the prior approval of the National Board; (b) the Authority shall take such steps as will ensure the security of wild animals in the sanctuary and the preservation of the sanctuary and wild animals, therein; (c) may take such measures, in the interests of wild life, as he may consider necessary for the improvement of any habitat; (d) may regulate, control or prohibit, in keeping with the interests of wild life, the grazing or movement of live stock. Thus, Section 33 of Act, 1972 vests in the Chief Wild Life Warden, the authority to control, manage and maintain all sanctuaries in the manner prescribed above and for that purpose, within the limits of any sanctuary, he may, regulate or control or prohibit in keeping with the interest of wild life the grazing or movement of live stock vide T.N Godavarman Thirumulpad v. Union of India and others, (2010) 13 SCC 740 . Though Section 33 of Act, 1972 confer power on Chief Wild Life warden to regulate constructions laying of roads etc., there was no complete prohibition of any construction. However, the alleged Parkruthi bata is to reach temple at Tirumala from Tirupati by foot, which is more than 10 kilometers. These refreshment stalls and fruit stalls etc., were permitted only to cater the needs of devotees who reach Tirumala by walk, through Prakruthi bata. When public movement is permitted, stalls are permitted to cater the needs of devotees, such running of refreshment stall, cannot be said to be in contravention of Section 33 of Act, 1972. When Mangapuram ECO Development Committee, allotted shop to father of petitioner S. Sahadevaiah, after his death allotted the same to petitioner by passing appropriate resolution, running of stall cannot be said to be prohibited. When Mangapuram ECO Development Committee, allotted shop to father of petitioner S. Sahadevaiah, after his death allotted the same to petitioner by passing appropriate resolution, running of stall cannot be said to be prohibited. Admittedly, no notice was issued, determining or terminating the tenancy of petitioner and in the absence of her removal from possession of refreshment stall, attempt made by second respondent to evict the petitioner, forcibly is arbitrary exercise of power, contrary to principles of natural justice and depriving her to carry on business for her livelihood, such right is protected under Article 19 of Constitution of India. Hence, the acts of second respondent are declared as illegal, arbitrary and violative of Articles 14, 19 and 300-A of Constitution of India, while directing second respondent not to evict the petitioner, forcibly, till she is evicted by due process of law. 23. In the result, the writ petition is allowed, declaring the action of second respondent as illegal, arbitrary and violative of Articles 14, 19 and 300-A of Constitution of Indian, consequently, second respondent is directed not to dispossess the petitioner, forcibly, till she is duly evicted by due process of law. There shall be no order as to costs. 24. Consequently, miscellaneous petitions, pending if any, shall stand closed.