Andhra HC (Pre-Telangana)
Sreeramanjaneyapuram Village ... vs Divisional Forest Officer And Ors. on 18 April, 2003
Equivalent citations: 2003(4)ALD482
ORDER V.V.S. Rao, J.
1. The petitioner is a registered society established with the object of reclaiming the forest land and put it to use for the benefit of Banjaras, Sugalis, Dalits and other persons belonging to weaker sections of the society. The society filed the writ petition seeking a writ of mandamus directing the respondents, namely, the Divisional Forest Officer, Guntur, Range Officer, Guntur Range, and Superintendent of Police, Guntur to issue one hectare of agricultural land in Venkatayapalem Forest Blocks I, II and III within the jurisdiction of Papayapalem forest section, Bellamkonda Mandal, Guntur District, to the members of the petitioner society.
2. The writ petition came to be filed in the background of the following events. It appears, in 1991, Special Deputy Collector (Land Acquisition) and the first respondent herein along with other officials inspected the Forest Blocks I, II and III of Papayapalem forest section and allegedly recommended that 60 to 75% of the area can be de-reserved for cultivation in view of the soil conditions and fertility status. Accordingly, it is alleged, the Special Collector, Nagarjuna Sagar Project, submitted a report to the Government to de-reserve Venkatayapalem Forest Blocks I, II and III, During April, 1992, the society consisting 400 families were put in possession by respondents 1 and 2. The members of the society allegedly re-claimed the forest land and dug four bore wells by spending Rs. 1,00,000/- and raised cotton crop, vegetables and other dry crops. The petitioner was also asked to open a joint account in the name of the society and the Forest Department which was accordingly opened by the Chairperson of the society. The petitioner society has been representing for grant of pattas. Some of the officials demanded illegal gratification and when the petitioner society denied the same, the respondents threatened to initiate action under Section 20 of the A.P. Forest Act, 1967 (hereafter called 'the State Act'). On 24-9-1997, the Forester along with Subordinate staff and Sub-Inspector of Police, Bellamkonda visited the village and threatened them with dire consequences like filing criminal case. The members of the petitioner society were permitted to open a joint account in under 'Vana Samrakshana Samithi' scheme ('VSS scheme' for brevity). Therefore, the respondents cannot forcibly evict them from the land.
3. This Court, while admitting the writ petition on 1-10-1997, by an order of even date in W.P. M.P. No. 29612 of 1997 ordered status quo to be maintained as on that date. Respondents I and 2 filed an application being W.V. M.P. No. 2667 of 1998 along with a counter affidavit and prayed this Court to vacate the interim order of status quo dated 1-10-1997. At that stage, the matter was directed to be listed for final hearing.
4. In the counter-affidavit filed by the first respondent, various allegations made by the petitioner are denied. It is stated that during 1991, there is no joint inspection for the purpose of de-reserving Venkatayapalem Forest Blocks I, II and III.
It is further stated as follows. In 1996, the Forest Section Officer, Papayapalem recommended to form a Vana Samrakshana Samithi at Mannesultanpalem. The second respondent then formed VSS and joint account was opened as per the rules/ guidelines. Subsequently, after verification of the identity of VSS members by the second respondent, it was found that they were found to belong to different parts of Guntur District and adjoining Nalgonda District. Therefore, VSS was formed against the rules of the joint forest management, because, only local people have to be involved in VSS. One Neelakantam Ramulu collected Rs. 300/- from each VSS member promising them that they would be allotted land. The petitioner society initially constructed thatched huts and dug bore wells in the reserve forest without any permission contrary to the provisions of the Forest (Conservation) Act, 1980 ('the Central Act' for brevity). The establishment of VSS was cancelled and the members of the petitioner society were requested to vacate the area. No forest official demanded any mamul or illegal gratification. As per the Central Act, the forest land cannot be utilized for non-forest purposes unless permission of the Government of India is obtained. Under the scheme, VSS is formed for the development of forest area with the help of local villagers. Under the said scheme, the reserve forest area cannot be de-reserved and no pattas can be granted by the Revenue Department to the members of VSS. The members of VSS have to raise plantation with specified forest species, but cannot raise cash crops like cotton, vegetables and other dry crops. The society was not formed in 1991 and it was established contrary to the rules only in May, 1996. The members of the petitioner society were evicted from the forest area in August, 1996. Again they encroached the forest land during 1997 and 1998. In spite of the request made by the respondents, they did not vacate the forest land and, therefore, they were forcibly evicted. The petitioner society is trying to occupy reserve forest area contrary to the provisions of the Central Act. The Forest Section Officer without noticing the rules and out of ignorance started VSS for which he was transferred and disciplinary action was initiated against him. The first respondent also initiated prosecution against the land grabbers on five occasions and the cases are pending at investigation stage. By reason of the status quo orders passed by this Court, more and more forest land is being encroached upon by the members of the petitioner society. A reference is also made to the judgment of the Supreme Court in W.P. (Civil) No. 202 of 1995, dated 12-12-1996 reported as T.N. Godavarman Thirumulkpad v. Union of India, and T.N. Godavarman Thirumulkpad v. Union of India, , wherein the Supreme Court directed to stop all non-forest activities in forest areas.
5. Learned Counsel for the petitioner, Sri Maqbool Ahmed, submits that the members of the petitioner society formed into VSS at the behest of the forest officials. They are in occupation of the forest land. Even if the land in which they are in occupation is reserve forest area, having regard to the social status of the members of the petitioner society, it is incumbent and obligatory on the part of the respondents to initiate necessary action under the Central Act as well as the rules made thereunder to approach the Government for de-reservation of the forest land and then assign the same by way of a regular patta. The members of the petitioner society cannot be evicted forcibly.
6. Learned Government Pleader for Forests, Sri G. Jayaprakash Babu, opposed the writ petition submitting that very formation of VSS is illegal. He further submits that even no VSS can be given pattas in respect of reserve forest area. As per the scheme, all the members of VSS are required to undertake plantation of forest area with specified forest seedlings and species and they can enjoy the crop and they cannot claim any right for allotment or assignment of land.
7. There is no denial by the petitioner society that the land in respect of which VSS was established, forms part of Venkatayapalem Forest Blocks I, II and III. There also no denial that it is reserve forest area and that under the relevant scheme no member of VSS gets a right for allotment of land either prior to formation of VSS or subsequently. What all the learned Counsel for the petitioner contends is that even if the members of the petitioner society are in occupation of the forest land, as they have spent money, dug bore wells and cultivating dry crops and cotton, the Government of Andhra Pradesh has a duty to take necessary steps under the Central Act for getting the land de-reserved and then allot pattas to them. I am afraid, the submission cannot be accepted.
8. The petitioner society has no right, much less legally enforceable right and, therefore, the writ petition seeking assignment of forest land is not maintainable. No person can claim a patta in respect of a land, which is a reserve forest area. A writ petition is not maintainable unless a right is violated or a right is claimed. A reference may be made to the recent decision of the Supreme Court in Director of Settlements, A.P. v. M.R. Appa Rao, , wherein it was held:
................. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed ..................... In order to obtain a writ or order in the nature of mandamus, the appellant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition................
9. It is next contended that as the members of the petitioner society belong to Scheduled Caste, Scheduled Tribe and Backward Classes, there is an obligation on the part of the authorities to explore the possibilities of getting the land de-reserved by the Central Government and allot pattas for agricultural land. Whether a duty is cast on the Government is the next question that falls for consideration.
10. The Government of Andhra Pradesh, by order in G.O. Ms. No. 13, Environment, Forest, Science & Technology (For.III) Department, dated 12-2-2002 issued comprehensive orders following the guidelines of the Govt. of India and provisions of the National Forest Policy, 1988. As per these orders, local village community can be constituted as VSS. Annexures I and II to the said Government Order contains salient features and rules applicable under the scheme. At the time of formation, every managing committee of VSS is required to sign a memorandum of understanding. As per this understanding as contained in Annexure II of the said Government Order, VSS will be entitled to a share in the usufruct only upon satisfactory observance of the duties and functions by the committee. Annexure I contains the rules. Nowhere in the rules a right is conferred on VSS or its members to claim pattas in the forest land. Indeed, no such right is conferred on anybody having regard to the Central Act. Learned Counsel for the petitioner placed reliance on the guidelines issued by the Govt. of India under the Forest (Conservation) Rules, 1981 made in accordance with the Central Act in support of the submission that the Govt. of Andhra Pradesh is under duty to send proposals to the Government of India for de-reservation of forest land. The relevant guideline 2.1 reads as under:
2.1 General :--(i) Rule X of the Forest (Conservation) Rules, 1981 prescribes the procedure for submission of proposals for seeking prior approval of the Central Government under Section 2 of the Act. The form appended to the Rules, specifies the particulars to be furnished with the proposal. Only proposal in the prescribed format, and complete in all respects, will be considered.
(ii) All proposals relating to diversion of forest land up to 20 hectares and proposals for clearing of naturally grown trees for reforestation shall be sent directly to the concerned Regional Office of the MOEF. All other proposals shall be sent to Secretary to the Government of India, MOEF.
(iii) Adverse recommendations of subordinate officers in prescribed form or in the documents attached with the form should invariably be commented upon by the Principal Chief Conservator of Forests/Chief Conservator of Forests. Similarly, adverse recommendation by the PCCF/CCF should be commented upon by the State Government to emphasise that a conscious decision has been taken in the matter.
11. After reading the above provision, I am not able to countenance the submission of the learned Counsel for the petitioner. There is no such duty cast upon the Govt. of Andhra Pradesh either under the Central Act, Rules made thereunder or the guidelines issued by the Govt. of India to send proposals for assignment of forest land. A reference may also be made to guideline 4.1, which reads as under:
4.1 Delegation of Powers :--(i) All proposals involving diversion/de-reservation of forest land up to 20 hectares, and proposals for clearing of naturally grown trees in forest area or portion thereof shall be sent by the concerned State/UT Government to the concerned Regional Officer of MOEF.
(ii) Chief Conservator of Forests of the concerned Regional Office shall be competent to finally dispose of all proposals (including decision regarding violation of Act) involving diversion/de-reservation of forest land up to 5 hectares, except in respect of proposals for regularization of encroachments and mining (including renewal of mining leases). Similarly, proposals involving clearing of naturally grown trees in forest area or portion thereof for reforestation shall also be finally disposed of by the Chief Conservator of Forests of the concerned Regional Office, subject to guidelines/ instructions issued in this regard (refer to para 1.8) and any other instructions issued from time to time.
(iii) In the absence of Chief Conservator of Forests, these powers shall be exercised by the concerned Conservator of Forests of the Regional Office in case the post of Chief Conservator of Forests is vacant due to transfer, long leave etc.................
(iv) A list of all cases finally disposed of and a list of cases rejected along with reasons thereof for rejection would be required to be sent every month to the MOEF by the Regional Office.
(v) In respect of proposals involving diversion of forest area above 5 hectares and up to 20 hectares and all proposals for regularization of encroachments and mining up to 20 ha., the proposals shall be examined by the Regional Chief Conservator of Forests/ Conservator of Forests in consultation with an Advisory Group consisting of representatives of the State Government from Revenue Department, Forest Department, Planning and/or Finance Department and concerned Department whose proposal is being examined. The views of the Advisory Group shall be recorded by the Regional Chief Conservator of Forests and along with the same, the proposal shall be sent to Secretary, MOEF for consideration and final decision. It is to be clarified that views of this Advisory Group in no way shall be binding while deciding the proposal. The meeting of the Advisory Group may be held at the State Capital. The proposal will not be deferred for want of quorum.
12. A plain reading of the above would show that diversion of forest land for rehabilitation of people is not permissible except in the case of rehabilitation of persons belonging to Scheduled Castes and Scheduled Tribes and other people, who are required to be shifted from the core zone of a national park. Again, I am unable to accept the submission of the learned Counsel for the petitioner that the said guideline comes to the rescue of the petitioner. Indeed, guideline 3.1 casts a duty on the Govt. of Andhra Pradesh to immediately remove encroachments. The said guideline reads as under.
3.1 In no case encroachments which have taken place after 24-10-1980 should be regularized. Immediate action should be taken to evict the encroachers. The State/ UT Government may, however, provide alternate economic base to such persons by associating them collectively in afforestation activities in the manner suggested in this Ministry's letter No. 6-21/89-FP, dated 1-6-1990, but such benefits should not extend to fresh encroachers.
13. A reading of the above provision would belie the submission of the learned Counsel for the petitioner that a duty is cast on the Govt. of Andhra Pradesh to send proposals for assignment of forest land. Learned Counsel for the petitioner placed reliance on the judgment of the Supreme Court in Union of India v. Kamath Holiday Resorts Pvt. Ltd., and a decision of the Kerala High Court in Nature Lovers Movement v. State of Kerala, . The principle laid down therein goes contra to the submission made by the learned Counsel for the petitioner.
14. In Nature Lovers Movement v. State of Kerala (supra), the Kerala High Court held:
.......... Thus, in our judgment, irrespective of what is provided in Section 10 of the State Act, 1971, all such forests which are vested in the State Government by reason of the conditions of Section 3(1) of the said Act cannot be assigned except with the prior approval of the Central Government as a result of the overriding provision contained in Section 2 of the Central Act, 1980. Only to this extent are we inclined to accept the contention of the learned Counsel for the petitioner.
15. Before I leave this case, I may refer to a decision of the Supreme Court in Banwasi Seva Ashram v. State of U.P., . A letter addressed by Banwasi Seva Ashram was treated as a writ petition under Article 32 of the Constitution of India. A large number of adivasis in Dudhi and Robertsganj Tehsils in Mirzapur District claimed forest land for agricultural purposes. A part of the land was declared as reserve forest under Section 20 of the U.P. Forest Act, 1927. It was contended that for generations adivasis and other backward classes were living in the jungle, cleared the forest land surrounding the villages and were eking out livelihood by growing fruits, vegetables, fodder etc. The Government initiated criminal action as well as civil action for eviction under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The Court initially passed orders directing that adivasis who are in possession of the land shall not be dispossessed and that no further encroachment shall be made on the forest land. Adivasis or tribals were prohibited to cut any trees on the land. When the matter was pending before the apex Court, the Government initiated proceedings for acquiring the land for setting up of super thermal plant of National Thermal Power Corporation. The Government made an application to modify the prohibitory order issued by the Court that the land shall not be utilized for any other purpose. The apex Court, while permitting establishment of the plant, gave certain directions. While doing so, it was observed that on account of depletion of forests which are national assets, the climate has undergone major change and rains have become scanty and that depletion of forests has long term adverse affects on national economy. Directions 1 and 2 are relevant and read as under:
(1) So far as the lands which have already been declared as reserved forest under Section 20 of the Act, the same would not form part of the writ petition and any direction made by this Court earlier, now or in future in this case would not relate to the same. In regard to the lands declared as reserved forest, it is, however, open to the claimants to establish their rights, if any, in any other appropriate proceeding. We express no opinion about the maintainability of such claim.
(2) In regard to the lands notified under Section 4 of the Act, even where no claim has been filed within the time specified in the notification as required under Section 6(c) of the Act, such claims shall be allowed to be filed and dealt with in the manner detailed below ...............
The apex Court also directed that claims of those persons who were in possession of the forest land covered by the earlier notification must be considered by setting up of adequate number of Record Officers and Settlement Officers and also providing remedy of appeal. As seen from the above two directions, this Court did not permit dereservation of forest land where a final notification declaring the reserve forest land is issued,
16. In T.N. Godavarman Thirumulkpad v. Union of India (supra), the Supreme Court examined the National Forest Policy and issued certain directions in the light of the provisions of the Central Act. Direction 1 is important and reads as under:
1. In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or plywood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith.
17. Again in T.N. Godavarman Thirumulkpad v. Union of India (supra), the Supreme Court issued certain clarifications insofar as saw mills are concerned, which read as under.
All unlicensed saw mills, veneer and plywood industries in the State of Maharashtra and the State of Uttar Pradesh are to be closed forthwith and the State Government would not remove or relax the condition for grant of any such saw mill, veneer and plywood industry and it shall also not grant any fresh permission/licence for this purpose. The Chief Secretary of the State will ensure strict compliance of this direction and file a compliance report within two weeks.
The Supreme Court also directed all the High Courts to ensure strict compliance with the orders passed by the Supreme Court.
18. In K.M. Chinnappa v. Union of India, 2003 AIR SCW 23, the Supreme Court observed that unless and until the Central Government's permission is obtained under the Forest (Conservation) Act, no forest land can be allowed to be used for non-forest purposes. Thus, forest land, whether encroached upon by the members of the petitioner society or put in their possession pursuant to formation of Vana Samrakshana Samithi scheme, which was later cancelled, cannot be assigned to them. Indeed, it is the case of the Government that the members of the petitioner society who encroached upon the forest land, have already been evicted.
19. In the result, for the above reasons, the writ petition fails and is accordingly dismissed. There shall be no order as to costs.