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2025 DIGILAW 96 (AP)

D. Pentam Naidu v. State Of Andhra Pradesh

2025-01-10

K.MANMADHA RAO

body2025
Order: K. MANMADHA RAO, J. The Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “….. to issue an order or direction more in the nature of Writ of Mandamus declaring that the Proceedings Rc.No.2171/2017/TO(1), dated 5.1.2018 issued by the 7 th respondent and the consequential Proceedings in Ref.No.11117/2017/WLR-1, dated 18.1.2018 issued by the 6 th respondent and set aside the same as illegal, arbitrary, contrary to law and unconstitutional and consequently direct the respondents 2, 3, 6 to 9 herein to permit the petitioner to conduct the Mining Operations in respect of the mining lease granted for Calcite and Mica over an extent of Ac.6.44 hectares in Survey No.4 of Kudia Village, Anahtagiri Mandal, Visakhapatnam, in pursuance of the Proceedings issued by the Assistant Director of Mines and Geology, Visakhapatnam vide Proceedings 4519/M/2002, dated 15.11.2002 and also as per the orders issued by the Principal Chief Conservator of Forests, Guntur in Proceedings in Ref.No.11117/2017/WLR-1, dated 22.12.2017, if necessary, by duly conducting a Joint Survey by the Revenue, Forest, Survey and Mining Departments in respect of the above said leased area and submit a report …….” 2. Brief facts of the case are that the petitioner applied for grant of Mining lease to an extent of 6.44 hectares in Survey No.4 of Kudia Village, Ananthagiri Mandal, Visakhapatnam District, in respect of Mineral Calcite and Mica and considering the same, the State of Andhra Pradesh, granted the Mining Lease, vide G.O.Ms.No.398, Industries Department & Commerce (Mines-III) Department. The 3 rd respondent issued work orders in his proceedings, permitting the petitioner to commerce the Mining Lease operations as per the provisions of Minor Mineral Concession Rules and other conditions. While so, one Naveena Educated Empower Development Samithi, made a complaint that the leased area and the mining operations are undertaken in a Forest Notified Area. Based upon the said complaint, the Forest Officials, without passing any orders of whatsoever, orally instructing us, not to take up the mining operations in the leased area. Hence, the petitioner made representation to the 7 th respondent i.e., Chief Conservator of Forests, Visakhapatnam, requesting to issue necessary directions to the concerned Forest Officials not to cause hindrance, obstructions, in execution of mining operations in leased area, which is a patta land and falls in the Revenue area of the village. Hence, the petitioner made representation to the 7 th respondent i.e., Chief Conservator of Forests, Visakhapatnam, requesting to issue necessary directions to the concerned Forest Officials not to cause hindrance, obstructions, in execution of mining operations in leased area, which is a patta land and falls in the Revenue area of the village. Since no action has been taken, the petitioner made representation to the 6 th respondent i.e., Principal Chief Conservator of Forests. The 6 th respondent directed the 8 th respondent i.e., Divisional Forest Officer, Visakhapatnam to rectify the Village boundary and the Forest boundary, by conducting a joint field survey with reference to the concerned record and file a report, by 15.10.2017. Thereafter, the 8 th respondent vide his proceedings, sent to the 7 th respondent stated that the entire mining area is falling outside the Kudia Revenue Village and within the Pedakota Reserve Land, by observing that the area of Kudia Revenue Village, given by the petitioner, is almost two to three times than the actual area, as per the Revenue Records. The 6 th respondent directed the 7 th respondent to settle issue at his level as the dispute is pending for last several months. However, the Full Additional Charge of the post of Principal Chief Conservator of Forests, Guntur wrote a letter to the 4 th respondent i.e., District Collector, Visakhapatnam to prepare a Village Map of Kudia Village, Ananthagiri Mandal, by marking a copy of the same to the Forest Department to settle the issue. The 7 th respondent sent a letter to the 6 th respondent submitting the conclusions arrived by the 8 th respondent, by orders dated 27.10.2017. Therefore, the petitioner made a complaint before the Grievance Cell of the 4 th respondent, seeking that a joint survey to be conducted by the Revenue and Forest Department, so as to clarify that whether the mining area falls under Revenue village area of Reserve Forest area. The 4 th respondent sent the communication to the 6 th respondent, wherein the Village Map of Kudia Village was enclosed, showing that the leased area in Survey No.4, falls within the Revenue Village Area and requested to take further action in the matter. The 4 th respondent sent the communication to the 6 th respondent, wherein the Village Map of Kudia Village was enclosed, showing that the leased area in Survey No.4, falls within the Revenue Village Area and requested to take further action in the matter. Pursuant to the same, the 6 th respondent directed the 8 th respondent not to interfere with the mining operations conducted by the petitioner until and unless, it is proved that the leased area is contrary to report of 4 th respondent or subject to outcome of Joint Survey to be conducted by Revenue, Forest and Survey Departments. Without conducting a joint survey, the 6 th respondent issued orders directing the 8 th respondent that no mining shall be allowed in the leased area, stating that mining area falls under Reserve Forest Area. Aggrieved by the same, the present writ petition has been filed. 3. This Court, vide order, dated 01.08.2018, has granted interim order in I.A.No.2 of 2018 as follows: “There shall be a direction to the respondents to conduct a joint survey with the Revenue, Forest and Mining Departments pursuant to the letter No.1379168/R1-3/2018, dated 15.06.2018 and the 3 rd respondent shall submit a report to this Court within a period of six weeks from today. It is also made clear that the petitioner herein shall also be given opportunity to attend the said joint survey by giving advance notice. Post on 17.09.2018 in Motion List for submission of the report.” 4. The respondents 1 to 3 filed counter affidavit denying the allegations made in the writ petition and stated that, in response to representation of the petitioner, the 2 nd respondent has called for a report from the 4 th respondent vide Lr.No.1379168/R1-3/2018, dated 15.06.2018 in the matter duly conducting joint survey with the Revenue, Forest and Mining Departments over the area of mining lease so as to solve the land of mining lease classification dispute and for taking further necessary action in the matter. The petitioner filed W.P.No.23651 of 2018 filed by the petitioner before the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and the Court granted interim directions in I.A.No.2 of 2018, directing the respondents to conduct a joint survey with the Revenue, Forest and Mining Department to the letter No.1379168/R1-3/2018, dated 15.06.2018 and the 3 rd respondent shall submit a report to this Court within a period of six weeks. In pursuance of the same, the officials of Revenue, Forest and Mining departments conducted Joint Survey on 16.08.2018 in Survey No.4 and Survey No.8 of Kudia Village of Ananthagiri Mandal, Visakhapatnam District in the presence of petitioner's son and submitted report concluding that the team is unable to come to conclusion regarding physical existence of Survey No.8. Thereafter, the 4 th respondent directed the Assistant Director, Survey and Land Records wing to conduct Joint Survey to resolve the land dispute issue. Hence, a survey team headed by AD, SLR along with the officials of Forest and Mining Departments had conducted a joint survey again on 11.09.2018 in Survey Nos.4 and 8 of Kudia Village and established physical existence of Survey Nos.4 and 8 of Kudia Village on ground as per revenue records and requested the Forest Officials to fix forest boundaries on ground. 5. The 4 th respondent filed counter affidavit denying the allegations made in the writ petition and stated that the Joint Survey Team gave their findings as, the Kudia Village is a notified Revenue Village as per Gazette publication dated 16.09.1969 and Survey department fixed boundaries as S.Nos.1 to 8 covering total extent of Ac.304.80 cents on 31.03.1971. The Revenue records, i.e., Settlement Fair Adangal of Kudia village, shows that Sy.No.4 measuring an extent of Ac. 15.91 cents (6.44 Ha), and Sri.Silpa Chinnayya, S/o. Appanna; Sri. PattasiSanyasi S/o Tammaiah and Sri Janni Gangulu S/o Appanna as Zeroithy pattadars and as per G.O.Ms.No.2186, Food & Agriculture (For-III) Department dated 04.12.1969 published in District and State Gazette, the Pedakota Forest Block was notified Forest Block with an extent of 23,194 Hectares covering two Mandals Ananthagiri and Hukumpeta in Visakhapatnam and Paderu Forest Divisions. There are 14 enclosures existing in Pedakota Forest Block, out of which Billakamba enclosure is one. There are 14 enclosures existing in Pedakota Forest Block, out of which Billakamba enclosure is one. The above said entire S.No.4 and portion of S.No.8 of Kudia Village and some survey fields of Billakamba village are within Billakamba enclosure i.e., enclosed by the said Pedakota Forest Block and the Survey department fixed boundaries in S.Nos.1 to 8 covering a total extent of Ac 304.80 cents on 31.03.1971, i.e., after Gazette publication of Pedakota Forest Block. Therefore, prayed to dismiss the writ petition. 6. The 8 th respondent filed counter affidavit denying the allegations made in the writ petition and stated that the area perambulated in Revenue village map in respect of Sy.No.4 of Kudia village is physically existing outside the Revenue village boundary but located within the Pedakota Forest Block. The Pedakota forest block notified under Section 4 of A.P. Forest Act, 1967 vide G.O.Ms.No.2186, Food and Agriculture (Forest-III) Department, dated 04.12.1969. By notification, the Forest Settlement Officer, Srikakulam (at present Visakhapatnam) has been appointed as Forest Settlement Officer with regards to the said land to consider the objections if any and to enquire into and determine the existence, nature and extent of any rights claimed by or alleged to exist in favour of any person on or over any land comprised within such limits or to any forest produce of such land and to deal with the same as provided in Chapter 11 of the said Act Had the claimed land actually covered by patta granted by authority, in pursuant of the Section 6 proclamation published on 02.06.1973 by the Forest Settlement Officer, Srikakulam, the pattadars of land might have filed their claim before the Forest Settlement Officer. But as reported by the Forest Settlement Officer, Visakhapatnam in Rc.no.223/70/FSW, dated 08.08.2019, only one claim filed by Sri Gemmela Pothuraju and 5 others of Solabongu village of Ananthagiri mandal on 23.09.1977. The claim filed in AR.No.38/1977 and conducted enquiry and concluded that the claim filed without any basis and documentary evidence, hence, the claim was disposed in the Award No.3/2010, dated 08.01.2010 in AR.No.38/1977 in favour of the Government i.e. Forest Department. Except the above, no other claims were filed before the Forest Settlement Officer, Srikakulam (at present Visakhapatnam). 7. The claim filed in AR.No.38/1977 and conducted enquiry and concluded that the claim filed without any basis and documentary evidence, hence, the claim was disposed in the Award No.3/2010, dated 08.01.2010 in AR.No.38/1977 in favour of the Government i.e. Forest Department. Except the above, no other claims were filed before the Forest Settlement Officer, Srikakulam (at present Visakhapatnam). 7. Heard Mr.P.Kamlakar, learned counsel for the petitioner, learned Assistant Government Pleader for Mines and Geology appearing for respondent Nos.1 to 3, learned Assistant Government Pleader for Revenue appearing for respondent Nos.4 and 5, learned Assistant Government Pleader for Forests appearing for respondent Nos.6 to 9. 8. On hearing, learned counsel for the petitioner while reiterating the contents urged in the writ petition, submits that, the Revenue authorities after due enquiry and through verification of field measurement book, pertaining to the Kudia Revenue Village, prepared the Kudia Village Map, showing that the extent of Kudia Village as 304.80 acres and the leased area i.e., Survey No.4 of the said village is falling within the boundaries of the Kudia Revenue Village. Therefore, the same cannot be disputed by the Forest Department Officials, without any other record available with them, showing that the leased area in Survey No.4 of Kudia Village, is falling under the limits of Reserved Forest Area. 9. To support his contentions, learned counsel relied upon the decision of Elizabeth Jacob Vs. District Collector, Idukki and others , [1 (2008) 15 SCC 166 ] wherein the Hon'ble Supreme Court held that “A claim that land may be forest land is not proof that it is forest land. A suspicion that there might have been collusion and fraud is not proof of collusion and fraud. At all events, who should establish fraud and collusion? Is it for the state which alleged fraud and collusion by someone in 1981 and 1984, to establish those facts? Or is it for the bonafide purchaser from the state to establish that there was no fraud or collusion in respect of the property put up by the State for sale? The onus is clearly on the state. We are therefore of the view that the Division Bench committed a jurisdictional error in interfering with the order of the learned Single Judge.” Therefore, learned counsel requests this Court to allow the writ petition. 10. The onus is clearly on the state. We are therefore of the view that the Division Bench committed a jurisdictional error in interfering with the order of the learned Single Judge.” Therefore, learned counsel requests this Court to allow the writ petition. 10. Per Contra, learned Assistant Government Pleader for Mines and Geology while reiterating the contents made in the counter affidavit, submits that, the Assistant Director, Survey and Land Records of Visakhapatnam addressing to DFO, Visakhapatnam vide D.Dis.A3/1174/2018,dated 30.01.2019 has reported that the boundaries of Sy.No.4 of Kudia were re-fixed as per the FMB and Traverse data. The old survey stones are also identified on ground and ground position is tallied with FMB measurements. The Forest officials expressed that the Sy.No.4 is forest department land as enclosure and produced Forest notification order under section (4). But, the same is not incorporated in Revenue records. As per Revenue records, it is noticed that the subject land is revenue land and section (13) of S&B Act was published at page No.1 of District Gazette on 16.9.1969 as per Revenue Village Map of Kudia Village. Furthermore, it was reported that the village traverse has been plotted and superimposed on Forest enclosure from common point No.78 and found that the Sy.No.4 is very far from the forest enclosure. It has been clearly shown in the sketch. Further, the forest enclosure was not incorporated in revenue records. Hence, further action has to be taken by the Revenue Department. Further informed that the survey department is not competent to decide the title and this matter may be referred to the Revenue Department as they are competent to decide the title of the land. Again, the Assistant Director of Mines and Geology, Visakhapatnam addressed letter dated 02.03.2019 to the Divisional Forest Officer, Visakhapatnam and Tahsildar, Ananthagiri Mandal, but the response from there is awaited. Unless the nature (title) of the disputed land in Sy.No.4 of Kudia Village is decided, further action could not be taken up. Therefore, learned Assistant Government Pleader prays to dismiss the writ petition. 11. On the other hand, learned Assistant Government Pleader for Revenue while reiterating the contents made in the counter affidavit, submits that, the Forest officials expressed that the S.No.4 is forest department land as enclosure and produced Section-4 Notification. But the same is not incorporated in Revenue Records. Therefore, learned Assistant Government Pleader prays to dismiss the writ petition. 11. On the other hand, learned Assistant Government Pleader for Revenue while reiterating the contents made in the counter affidavit, submits that, the Forest officials expressed that the S.No.4 is forest department land as enclosure and produced Section-4 Notification. But the same is not incorporated in Revenue Records. As per Revenue Records, it is noticed that the subject land is revenue land and Section (13) of Survey and Boundaries Act was published at page No.1 of District Gazette on 16.9.1969 as per RV.M. of Kudia Village. The Village traverse has been plotted and superimposed on Forest enclosure from common point No.78 and found that the S.No.4 is very far from the forest enclosure and also stated that, the forest enclosure was not incorporated in revenue records and further action has to be taken by the Revenue Department. The original pattadars in Survey No.4 of Kudia Village and the Forest Department have to approach the proper form for redressal of title dispute. As per the A.P. Forest Act, 1967, the proper forum to decide the title over the said land is Forest Settlement Officer, Visakhapatnam. 12. To support his contentions, learned Assistant Government Pleader relied upon the decision of M/s Colorock (P) Ltd. Vs. Director of Mines and Geology, Government of A.P. Hyderabad and others , [LAWS (APH)-1989-6-32] , and submitted that the Forest (Conservation) Act, 1980 in Section-2 refers not only to forests which are reserved, but also to other forest land and that even non reserved forest land cannot be diverted for non-forest purposes. He points out that when once a notification is issued under Section 4 of the A.P. Forest Act, it is sufficient indication of the potentiality of the land being convented as part of a reserve forest land and that the description of the land as 'Konda' in the revenue records is sufficient indication that the land can be treated as forest land for the purposes of Forest (Conservation) Act, 1980. Therefore, learned Assistant Government Pleader prays to dismiss the writ petition. 13. Perused the material on record. 14. On a perusal of Chapter-II of the Andhra Pradesh Forest Act, 1967, this Court observed the following case law: “ 5. Therefore, learned Assistant Government Pleader prays to dismiss the writ petition. 13. Perused the material on record. 14. On a perusal of Chapter-II of the Andhra Pradesh Forest Act, 1967, this Court observed the following case law: “ 5. Suits barred :- Save as otherwise provided in this Act, no Court shall between the dates of the publication of the notification under Section 4 and the notification to be issued under Section 15, entertain any suit or other action against the Government to establish any right in, or over, any land, or to forest produce of any land included in the notification published under Section 4. 7. Bar of accrual of fresh rights and prohibition of clearings:- (1) During the interval between the publication of a notification in the Andhra Pradesh Gazette under Section 4 and the date fixed by the notification under Section 15- (a) no right shall be acquired by any person is or in the over the land included in the notification under Sec.4 except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or any person in whom such right was vested before the publication of the notification under Section 4; (b) no new house shall be built or plantation formed, no fresh clearing for cultivation or for any other purpose shall be made, on such land and no trees shall be cut from such land for the purpose of trade or manufacture: Provided that nothing shall prohibit the doing of any act specified in this clause with the permission in writing of the Forest Settlement Officer; and (c) no person shall set fires or kindle or leave burning any fire in such manner as to endanger or damage such land or forest produce. (2) No patta in such land shall be granted by or on behalf of the Government.” 15. It is the contention of the learned counsel for the petitioner that the 3 rd respondent issued work orders for mining lease in Survey No.4 of Kudia Village, Ananthagiri Mandal, Visakhapatnam district. But on the compliant of Naveena Educated Empowerement Development Samithi, the respondents without passing any orders, orally instructed not to take up the mining operations in the leased area. But on the compliant of Naveena Educated Empowerement Development Samithi, the respondents without passing any orders, orally instructed not to take up the mining operations in the leased area. It is the further contention of the learned counsel for the petitioner that the Revenue authorities after due enquiry and verification of field measurement book, prepared the Kudia Villge Map and stated that the Survey No.4 is falling within the boundaries of the Kudia Revenue Village. 16. Moreover, it is the contention of the learned Assistant Government Pleaders that the Survey No.4 is forest land, but the same is not incorporated in Revenue records. As per Revenue records, it is noticed that the subject land is revenue land and found that the said land is very far from the forest enclosure and the forest enclosure was not incorporated in revenue records. 17. Having regard to the facts and circumstances of the case and on considering the submissions of both the learned counsels, it appears that, the Survey No.4 of Kudia Village is falling within the boundaries of the Kudia Revenue village and falls under the limits of Reserved Forest Area. Hence, this Court is inclined to allow the writ petition, setting aside the impugned proceedings dated 05.01.2018 and 18.01.2018. 18. Accordingly, the Writ Petition is allowed. The impugned proceedings vide Rc.No.2171/2017/TO(1), dated 05.01.2018 issued by the 7 th respondent and consequential proceedings vide Ref.No.11117/2017/WLR-1, dated 18.01.2018 issued by the 6 th respondent are hereby set aside. Further, the respondents are directed to conduct a joint survey with the Forest Officials and thereafter take steps for granting mining lease for Calcite and Mica over an extent of Ac.6.44 hectares in Survey No.4 of Kudia Village, Anantagiri Mandal, Visakhapatnam, to the petitioner and pass appropriate orders, in accordance with law. 19. There shall be no order as to costs. 20. As a sequel, miscellaneous applications pending, if any, shall stand closed.