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PETITIONER: D.  RAMAKRISHNA REDDY & OTHERS , THE CONSERVATOR OF FOREST, NIZAMABAD & ANR.

       Vs.

RESPONDENT: THE ADDL.  REVENUE DIVISIONAL OFFICERS & OTHERS , D.  RAMAKRISHNA REDDY & ORS.

DATE OF JUDGMENT:       18/08/2000

BENCH: D.P. Mohapatra, J. & R.P. Sethi, J.

JUDGMENT:

D.P.  MOHAPATRA, J.

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    These  three  appeals  filed  on   the  basis  of   the certificate  of fitness granted by the High Court of  Andhra Pradesh   involve  common  questions  of  facts   and   law. Therefore,  they  were  heard together and  they  are  being disposed  of  by this Judgment.  Civil Appeal No.   3012  of 1987 filed by the Conservator of Forests, Nizamabad Division and  the Divisional Forest Officer, Kama Reddy, is  directed against  the Judgment of the Division Bench of High Court of Andhra  Pradesh  in  Writ Appeal No.  731 of  1982,  whereas Civil  Appeal  Nos.   9617 -18/95 filed by  D.   Ramakrishna Reddy  and four others are directed against the Judgment  of the  Division  Bench of the High Court in Writ  Appeal  Nos. 790  and  676  of  1982.  All the writ  appeals  were  filed against  the judgment dated 22.4.1982 passed by the  Learned Single  Judge disposing of Writ Petition Nos.  5793 of  1979 and 637 of 1982.  Both these Writ Petitions were filed by D. Ramakrishna  Reddy  and  Others assailing  the  taking  over possession  of surplus lands from them under the  provisions of  the Andhra Pradesh Land Reforms(Ceiling and Agricultural Holdings)   Act,  1973  (Act  I  of  1973).   The   specific controversy  raised in the cases related to the right of the petitioners  to  cut and remove trees from the  forest  area which  was  a  part of the surplus land.  The  case  of  the petitioners, as appears from the discussions in the Judgment of  the  learned  Single Judge, was that  the  forest  land, though  a  part of the surplus land in their hands  had  not vested  in  the  State Government,and therefore,  they  were entitled  to  cut and remove the trees standing on the  said land before handing over possession of the land to the State Government.   The  writ petitioners also pleaded  that  long before  the  land was declared surplus with them,  they  had moved  the competent authority of the Forest department  for grant  of  transit permits to them for cutting and  removing the standing trees.  The authorities sat over the matter and did  not issue the requisite transit permit.  Therefore, the writ  petitioners  sought a writ of mandamus  directing  the authorities concerned to issue necessary transit permit.

    The   State  Government,   particularly  the   Officers concerned  of  the  Forest Department,  contested  the  case mainly  on  the grounds that the entire surplus land in  the hands  of  the  writ  petitioners had vested  in  the  State

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Government  along with the forest growth on a portion of the same.   The  lands  including  the trees  and  other  forest produce  were  the property of the State Government and  the writ petitioners had no right to cut and remove the trees on any  portion  of  the surplus land which had vested  in  the State Government.

    The  learned Single Judge, considering the case of  the parties,    formulated   the     following   questions   for determination  :- 1.  When does the land surrendered by  the landholder  vest  in  the  State?  2.   Whether  the  forest produce  standing on the land surrendered also vests in  the State along with the land?  an d 3.  Whether the petitioners are  entitled to any relief on the ground that they had been approaching  for  the last several years for permits to  cut and  remove  the forest produce on the said land,  but  were prevented  from doing so on account of in-action on the part of  or  wrong  orders passed by the officers of  the  Forest Department?

    The  learned Single Judge divided the writ  petitioners into  three categories;  in the first category were included petitioners  D.  Narasimha Reddy and D.  Venkata Reddy,  the second  category  related to D.  Ramakrishna Reddy  and  the third category related to petitioners G.  Laxma Reddy and G. Bhoopal  Reddy.  The appellants herein who were included  in the  first  category surrendered the surplus land  in  their possession  on 1.3.1979.  Regarding the second category, the learned  Single  Judge  observed  that  the  petitioner  had neither surrendered the surplus land nor possession had been taken  by  following the procedure prescribed under the  Act and  the rules, though notice in Form No.  IX was served  on the  petitioner on 12.11.1979.  Similarly, in respect of the third  category  of  petitioners, the observation  was  that neither notice under Form No.  IX had been issued nor served on the party.  The learned Single Judge held that vesting of the  surplus  land takes place on the date the Form No.   IX notice  is issued and served upon the person concerned.   In support  of the finding, he placed reliance on the  language of  Section 11 of the Act and the contents of Form IX.   The learned  Single  Judge  further held that the  surplus  land vests  in the Government free from all encumbrances from the date of the order to take possession which is stated in Form IX  notice.  On the basis of the above findings, the learned Single  Judge  held that in the case of categories 1 and  2, i.e.   the  writ petitioners 1, 2 & 5, the surplus land  had vested  in  the  State in the year 1979 itself,  the  forest growth  on the said land too vested in the State along  with the  land and no separate compensation or amount is  payable on  account  of  such forest growth.  In  this  regard,  the learned  Single  Judge  placed reliance on a decision  of  a Division  Bench  of  the  High Court  in  Writ  Appeal  Nos. 355-356 of 1982 dated 16.4.1982.

    Dealing  with  the case of writ petitioners 3 &  4  who were  included  in  the third category, the  learned  Single Judge   took  the  view  that   the  lands  proposed  to  be surrendered  by  them have not yet vested in the State;   in such  a  situation, there can be no valid objection  by  the authorities  of  the Forest department for  issuing  transit permits.   The  learned  Single Judge  directed  the  forest authorities  to issue transit permits in favour of the  writ petitioners   3  &  4  G.    Bhoopal  Reddy  and  G.   Laxma Reddy(since  deceased  represented  by   Bhoopal  Reddy)  in respect  of  the forest growth on the land, which  they  had

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offered   to  surrender  as  surplus   land  to  the   State Government.   Specifying  the  area of the  said  land,  the learned  Judge observed the extent of land to be 46 acres 95 cents  in  Survey  No.   836   of  Hussain  Nagar   village. Clarifying  the  fact situation further, the learned  Single Judge  observed  that the total area of 160 acres  88  cents comprising  of  53  acres 50 cents of first  petitioner,  53 acres 50 cents of second petitioner and 53 acres 80 cents of fifth  petitioner  which had been surrendered had vested  in the  State,  transit permits for the forest produce  in  the remaining  area  was ordered to be issued according  to  the rules  within one month of the date of receipt of the order. The  learned Single Judge further ordered that if there  are any fruit bearing trees on the land which was surrendered by petitioners  1,  2  &  5  vested  in  the  State,  the  said petitioners shall be entitled to compensation as per Rule 11 of  the  Andhra Pradesh(Ceiling on  Agricultrural  Holdings) Rules, 1974.

    Being  aggrieved by the judgement of the Learned Single Judge,  the  Conservator  of   Forests,  Nizamabad  and  the Divisional  Forest  Officer, Kama Reddy Division filed  Writ Appeal  No 731 of 1982 which was disposed of by the Judgment rendered  on 27.7.1987, the operative portion of which reads as follows:-

    "The  Forest  produce, we affirm, did not vest  in  the Government  on  the facts of the case as held in  the  order under Appeal.  The landholders are entitled to compensation. We   direct  the  Government  to   determine  and  pay   the compensation  for  the  forest growth in  four  months  from today."

    The  said Judgement is under challenge in Civil  Appeal No.  3012 of 1987.

    In  the  other  cases, Civil  Appeal  Nos.   9617-18/95 directed  against  the  Judgment  of the  High  Court  dated 10.7.1987  in  Writ Appeal Nos.  676 and 790 of  1982  which were  filed  by  the writ petitioners against  the  Judgment passed  by  the learned Single Judge in Writ  Petition  Nos. 5793 of 1979 and 637 of 1982, the Division Bench disposed of the  Writ  Appeals  by  the order which  reads  as  follows: "Following  the  dicision in W.A.  Nos.355 and 356  of  1982 dated  April  16, 1982 the Writ Appeals are dismissed.   The cases do involve a substantial question of law to be decided by  the Supreme Court, Oral Leave is granted.  Status quo as on today to be continued for two months from today."

    That  is  how  these appeals have been  filed  in  this Court.

    The   Andhra   Pradesh  Land    Reforms   (Ceiling   on Agricultural  Holdings) Act, 1973 (Act I of 1973), as stated in  the Preamble, is an act to consolidate and amend the law relating  to  the  fixation of the ceiling  on  agricultural holdings and taking over of surplus lands and to provide for the  materials  connected therewith.  Section 2 of  the  Act contains  a declaration that the act is for giving effect to the  policy  of  the State towards securing  the  principles specified  in  clause  (b)  and (c) of  Article  39  of  the Constitution  of  India.   Section  3  which  contains   the definitions  of  certain terms used in the Act  provides  in clause(c),  that  ’ceiling area’ means the extent  of  lands specified  in  Section 4 or Section 4-A to be ceiling  area;

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under clause (j) ’land’ means which is used or is capable of being  used  for  purposes of agriculture, or  for  purposes ancillary  thereto,  including  horticulture,  forest  land, pasture  land, plantation and tope and includes land  deemed to  be agricultural land under the Act.  (Emphasis supplied) Explanations  1  &  2 to the said sub-Section are  not  very material  for  the purpose of the present case.   Section  4 contains the provisions regarding ceiling area in respect of an  ’individual’  and a ’family’.  Section 8 of the  Act  in which  provision  is made for ’declaration of holding’ by  a person reads as follows:- (1) Every person, whose holding on the  notified date together with any land transferred to him on  or after the 24th January, 1971, whether by way of sale, gift  usufructuary mortgage, exchange, settlement, surrender or  in any other manner whatsoever, and any, land in respect of  which  a trust has been created by him on or  after  the 24th  January,  1971,  exceeds the specified  limits  shall, within  thirty  days from the notified date or  within  such extended period as the Government may notify in this behalf, furnish  a  declaration in respect of his  holding  together with  such  land, to the Tribunal within whose  jurisdiction the  whole  or  a  major  part of  his  holding  is  situate containing  such  particulars  including those  relating  to lands  held  by him in any part of India outside the  State, and in such form as may be prescribed.

    2.   Without prejudice to the provisions of sub-section (1), the Tribunal shall have power to issue notice requiring any  person holding land or residing within its jurisdiction who,  it  has reason to believe, holds or is deemed to  hold land  in excess of the ceiling area to furnish a declaration of   his  holding,  or  that  of  his  family  unit,   under sub-section  (1)  within such period as may be specified  in the notice not being less than fifteen days from the date of its communication, and

    such person shall furnish the declaration accordingly.

    (3)   If  any  person  who  is  liable  to  furnish   a declaration  under sub-section (1) or sub-section (2)  fails to  furnish  the declaration within the specified time,  the Tribunal may obtain the necessary information in such manner as may be prescribed.

    Section  9 in which provision is made for determination of ceiling area lays down :-@@    JJJJJJJJJJJJJJJJJJJJJJJJJ

    "Tribunal shall on receipt of the declaration furnished or  information obtained under Section 8, publish the  same, and  make  an enquiry, in such manner as may be  prescribed, and  pass orders determining whether the person holds or  is deemed  to  hold on the notified date an extent of  land  in excess  of the ceiling area and if so, the extent of land so held in excess as on that date."

    Section  10 contains the provisions regarding surrender of  surplus land.  Sub-Sections(1), (2), (3) & (4) which are particularly  relevant  for the purpose of the present  case are quoted hereunder:-

    "  (1)  If the extent of the holding of a person is  in excess  of  the ceiling area, the person shall be liable  to surrender the land held in excess.

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    (2)  The  Tribunal shall serve on every person, who  is liable  to surrender the land held in excess of the  ceiling area  under sub-section (1), a notice specifying therein the extent  of  land  which  such person has  to  surrender  and requiring  him  to file a statement within such  period  not being  less  than  fifteen days, as it may  fix,  indicating therein,  full  particulars of the lands which  such  person proposes to surrender.

    (3)  If  the  person on whom a notice is  served  under sub-section  (2),  files the statement referred to  in  that sub-section  within  the  period  fixed  therefor,  and  the Tribunal is satisfied, after making such inquiry as it deems fit that the proposed surrender of the land is in accordance with  the  provisions  of this Act, it shall pass  an  order approving the surrender and the said land shall thereupon be deemed to have been surrendered by such person.

    (4)  If  the  person on whom a notice is  served  under sub-section  (2) does not file the statement referred to  in that  sub-section within the period fixed therefor or  files such  statement within the period fixed but does not specify therein  the entire extent of land which such person has  to surrender,  the Tribunal may, after giving an opportunity to the  person concerned of being heard, itself select, in  the former  case the entire extent, and in the latter case,  the balance  of  the extent which such person has to  surrender, and  pass  an order to that effect, and thereupon  the  said land or balance of land, as the case may shall be, deemed to have  been surrendered by such person." (Emphasis  supplied) This  brings  us to the provision regarding vesting of  land surrendered.   Section  11  which deals with the  matter  is quoted  hereunder  :  "11.  Vesting of land  surrendered  :- Where  any  land  is surrendered or is deemed to  have  been surrendered  under  this  Act  by   an  owner  the   Revenue Divisional  Officer  may,  subject to such rules as  may  be prescribed,  by  order  take  possession  or  authorise  any officer  to  take  possession  of   such  land  which  shall thereupon  vest in the Government free from all encumbrances from the date of such order :

    Provided  that  any  claim   or  liability  enforceable against  that land immediately before the date of vesting in the Government may be enforced only -

    (i)  against  the  amount  payable under  this  Act  in respect  of such land;  and (ii) against any other  property of the owner;

    to the same extent to which such claim or liability was enforceable against that land or other property, as the case may be, immediately before the date of vesting.

    Explanation :- Nothing in this section shall affect the provisions  of any law, custom, usage or agreement  relating to  right of easements available for any land vesting in the Government under this section over any other land."

    In  Section  20 are contained the provisions  regarding appeal and Constitution of the Appellate Tribunal etc.

    Coming  to the provisions of the Rules;  in Rule 7  the procedure for surrender of land by a person whose holding is in  excess  of  the  ceiling area is laid  down.   From  the provision  in  the  said  rule it is clear that  it  is  the

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Tribunal  which  has  to  identify the  excess  land  to  be surrendered  to  the  State.  Discretion is  vested  in  the Tribunal  to accept or not to accept the statement filed  by the  holder  of  surplus  land  regarding  the  land  to  be surrendered.  Power is also vested in the Tribunal to itself select the land to be surrendered.

    Rule  8  sets  out  the   procedure  for  taking   over possession  of the land surrendered.  In sub-rule (1) of the said  rule,  it  is laid down that  the  Revenue  Divisional Officer  may on receipt of a copy of the order passed by the Tribunal under sub-rule (6) of rule 7 in respect of any land surrendered  or deemed to have been surrendered by an  owner issue  an order in Form IX authorising any Officer not lower in  rank  than  a Revenue Inspector to  take  possession  or occupation  of such land.  Under sub-rule (2), a copy of the order  is to be served on the person who has surrendered  or is  deemed  to  have surrendered the land and on  any  other person  in  possession  or  occupation  of  such  land.   In sub-rule  (4),  provision  is  made that  where  the  person concerned  fails  to voluntarily deliver possession  of  the land,  the officer authorised to take possession of the land may  enter  upon the land to take possession  thereof  after removing  any  obstruction or any unauthorised occupant,  on such  land if necessary by using such force as he thinks fit and  record  a  certificate in Form X duly attested  by  two witnesses.   Under the proviso, an exception is made in  the case  where  there is a seasonal crop on the land as on  the date  of  taking possession, and in that case, it  shall  be allowed  to be harvested by the person in actual  possession or  occupation of the land on that date, at his own risk and no  compensation from the Government for any loss or  damage shall  be allowed under any circumstances.  In sub-rule  (7) of  rule  8,  it is provided that all lands  vested  in  the Government  shall  be registered in the revenue accounts  of the  village as assessed waste Government lands until  their allotment  or  transfer, as the case may be,  in  accordance with  the provisions of the Act, or until their registry  is duly  altered in accordance with the rules in force relating to  Government lands.  Rule 10 deals with disposal of  lands vested on the Government.

    In Rule 10-A, provision is made for retransfer of land, vested in Government in certain cases.

    Rule  11  which makes provision regarding  fixation  of value  for fruit bearing trees and structures etc.  reads as follows:   - (1) The amount payable for fruit bearing  trees shall  be  at the seinorage rates notified by  the  District Forest  Officer  as applicable to the district from time  to time  and  for the Tribunal may require the district  Forest Officer  in  whose  jurisdiction  the land  is  situated  to furnish an estimate of the amount payable for such trees.

    (ii) The amount payable for the structures of permanent nature  shall be equivalent to the depreciated value of  the structure  as on the specified date and for this purpose the Tribunal  may  require  the Executive  Engineer,  Roads  and Buildings  Division, in the district to furnish an  estimate of the depreciated value of such structure.

    From  the conspectus of the relevant provisions in  the Act  and  the Rules noted in the preceding paragraph  it  is

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clear  that the surplus land which is surrendered or  deemed to  have  been  surrendered  shall  vest  in  the  State  on communication  of the order passed by the Revenue Divisional Officer  to  take  over  possession  of  such  land  to  the owner/holder/occupier   of   the  said   land.    The   word ’thereupon’  in  Section  11  refers to such  order  of  the Revenue  Divisional Officer.  The order in Form ’IX’ and the manner  in which the said order will be served on the  owner are  prescribed  in sub- rules (1) and (2) of Rule  8.   The provisions  incorporated in sub-rule (3) to (7) of the  said rule are steps to be taken after the surplus land has vested in  the State.  Vesting of the surplus land in the State  is not dependent on taking over physical possession of the land which  may  be  immediately after the vesting  or  sometimes subsequent  thereto.   It is our considered view  that  this conclusion  emanates  from a harmonious construction of  the provisions in section 11 and rule 8 and it is in accord with the object and purpose of the Act.

    Regarding  payment  of  compensation for  the  standing trees  or any other forest produce on the land vested in the State  Government,  our attention has not been drawn to  any provision  in  the Act or in the Rules for payment  of  such sum.   Section  15 of the Act makes provision regarding  the amount  payable for any land vested in the Government  under the  Act which is to be calculated at the rates specified in the  second schedule.  Section 16 makes provision  regarding claims  for amount payable which is to be determined by  the Tribunal.   In  rule  11 is incorporated the  provision  for fixation  of  value for fruit bearing trees and  structures. There  being no provision in the Act or Rules for payment of any  sum  for the trees (other than fruit bearing trees)  or any  other  forest produce on the vested land, no claim  for compensation  for the trees or other forest produce standing on  the  surplus  land surrendered or deemed  to  have  been surrendered  arises  under the provisions of the Act or  the Rule.   The tribunals are creatures of the Act and it is not open to them to travel beyond the provisions of the statute. The  High Court while examining the correctness or otherwise of  the order passed by the tribunal or any action taken  by an  officer  under  the  Act is also to  be  guided  by  the provisions of the statute.

    The question that remains to be considered is regarding grant of permit to the respondents for removal of the forest produce.   In  this regard, it is sufficient to  state  that even  before vesting of the property in the State Government the  holders  of  the  land had no  right  for  felling  and removing the standing trees or other forest produce from the forest area.  They could do so only on getting a permit from the  competent officer of the Forest department of the State Government  authorising them to fell and remove the trees or other  forest  produce.   Grant of such permit  was  at  the discretion  of the competent officer and the power was to be exercised  in accordance with the provisions of the  statute applicable  in  the  matter  and the rules  framed  in  that regard.  Therefore, no direction could be justifiably issued in  the present proceedings which is relating to vesting  of surplus  land  under the Act, for felling and/or removal  of any forest produce from forest area.  The resultant position from the discussions in the foregoing paragraphs is that the judgment  of  the Division Bench confirming the judgment  of the  learned  single  Judge of the High Court,  that  forest produce  did  not  vest  in  the  Government  and  that  the landholders  are entitled to compensation is  unsustainable.

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Consequentially  the  direction to the State  Government  to determine  and pay the compensation for the forest growth is also  unsustainable.  Accordingly, the Civil Appeal  No.3013 of  1987 is allowed and the judgment under challenge is  set aside.   Civil  Appeal Nos.  9617-18 of 1995 are  dismissed. In  the  circumstances, however, there will be no order  for costs.