Mukund Shivaram Patil And Ors. vs State Of Maharashtra, Through Its ...
2001 Latest Caselaw 519 Bom

JUDGMENT

D.B. Bhosale, J.

1. The present writ petition arises out of an order passed by the Deputy Collector (Acquisition), Thane, Forest (Private Forests) Division, dated 28th July, 1979, in an enquiry held under section 22A of the Maharashtra Private Forests (Acquisition) (Amendment) Act, 1978 (for short, "Amendment Act of 1978"). By this order, the petitioner's land stood acquired and vested in the State Government. The order of the Deputy Collector was challenged by the petitioners in revision under section 22A(4) of the Amendment Act of 1978, before the Additional Commissioner, Konkan Division, Bombay, which was dismissed by the judgment and order dated 25th January, 1989 solely on the ground that the same was filed beyond the period of limitation. Both these orders are under challenge in the instant petition.

2. The land involved in the present petition is Survey No. 79 (Part), admeasuring 1 Hectare and 40 Ares situated at village Brahmangaon, Taluka Wada, District Thane (for short, "the said land"). The land originally belonged to Shri Shivaram Nathu Patil who died in 1965 and the petitioners,

being the heirs, became the owner of the land. The petitioners claim that there was a partition amongst them in 1966 and the said land was allotted to the share of the petitioner No. 1. On 5th April, 1988, the petitioner No. 1 received a notice issued by the Talathi under section 150(2) of the Maharashtra Land Revenue Code, 1966, read with Rules 14 and 24 of the Maharashtra Land Revenue (Register of Mutations) Rules, thereby calling upon the Petitioner No. 1 to show cause against the proposed entry of the name of the Forest Department in the revenue records of the said land. The petitioners, claim to have got knowledge, for the first time, of the order passed by the respondent No. 2 under section 22A of the Amendment Act of 1978, when he received the aforesaid notice dated 5th April, 1988. The petitioners, thereafter, appear to have obtained a certified copy of the order passed by the Respondent No. 2 and filed Revision Application No. 31 of 1988 before the Additional Commissioner. Konkan Division, Bombay, under section 22A(4) of the Amendment Act of 1978. According to the petitioners, the land involved is neither a private forest nor forest within the meaning of the provisions of the Maharashtra Private Forests (Acquisition) Act, 1975 (for short. "Act of 1975") or the Indian Forests Act, 1927 respectively.

3. Mr. Godbole, the learned counsel appearing for the petitioners, assailed the impugned orders on the following grounds :

Firstly, that the Additional Commissioner has completely overlooked the provisions of section 29 of the'Limitation Act, 1963. He contended that the Act of 1975 is special law and since there is no provision in the said Act excluding the applicability of the provisions of the Limitation Act, 1963, in view of section 29(2), the provisions of section 5 of the Limitation Act, continue to apply even to the proceedings under section 22A of the Amendment Act of 1978 and in view thereof, the Additional Commissioner ought to have condoned the delay in filing the Revision Application under section 22A(4) and heard the same on merits.

Secondly, Mr. Godbole contended that the Act of 1975 made provisions for acquisition of certain lands to be declared as private forest under the said Act. As far as the enquiry under section 22A is concerned; it presupposes a conclusive declaration after enquiry that the land is a forest land within the meaning of section 2(f)(iii) of the Act of 1975. The mere Issuance of a notice under section 35(3) of the Indian Forests Act. 1927, is not sufficient and cannot be construed as a conclusive proof of declaration of forest land and it requires an enquiry under section 6 of the Act of 1975 and an opportunity of being heard to the landlord. He further contended that the petitioners have never been served with a notice under section 35(3). Mr. Godbole placed reliance on the observations made by this Court in Jaju Waghmare and others v. The State of Maharashtra and others.

Thirdly, Mr. Godbole contended that the petitioners have not been served with the notice of the inquiry under section 22A of the Amendment Act of 1978.

Lastly, Mr. Godbole, learned counsel for the petitioners submitted that the orders passed by the authorities below may be quashed and set aside and the matter may be remanded and the petitioners be given an opportunity of being heard in the proceedings under Section 22A of the Amendment Act of 1978.

4. On the other hand, Mr. Palekar, learned Additional Government Pleader, for the respondents contended that the provisions of the Limitation Act have been excluded, so far as section 22A of the Amendment Act of 1978 is concerned Mr. Palekar, made reference to section 15 of the Amendment Act of 1978, and submitted, that when Legislature wanted to make provisions of the Limitation Act applicable to the proceedings under this Act, a specific provision has been made because section 15 provides that the provisions of sections 4, 5 and 12 of the Limitation Act shall apply to the appeals filed under section 15 of that Act. Absence of any such provision under section 22A, is indicative of exclusion of the provisions of Limitation Act, so far as this provision is concerned. Mr. Palekar in the alternative submitted that so far as section 22A is concerned, the provisions of the Llmiation Act apply to the proceedings in Courts and the authorities empowered to exercise powers under Sub-section (4) of section 22A, not being Court, cannot condone the delay. He, lastly, submitted that the remedy under section 22A(4) is not available to the petitioners and their revision is not maintainable, since the powers under Sub-section (4) of Section 22A are vested only in the Commissioner or the State Government to call for record of any enquiry or proceedings of the Collector within a period not exceeding one year from the date of decision under section 22A. Mr. Palekar, relying on the office record, submitted that the petitioners were given notice of hearing by the Addl. Collector, in the proceedings under section 22A and the petitioners" contention that, the said proceedings were conducted behind their back without affording them an opportunity of being heard, is not correct.

5. We have heard learned counsel appearing for the parties and perused the record. Before we deal with the merits of the case, we would first like to consider the preliminary contention advanced by Mr. Godbole, learned counsel for the petitioners, that the petitioners have a right to file revision under Sub-section (4) of section 22A of the Amendment Act of 1978 and the Commissioner can exercise powers under Section 5 of the Limitation Act and condone the delay on being satisfied with the cause shown by the petitioners for not preferring Revision Application within a period of one year from the date of the decision of the Deputy Collector dated 28th July, 1979. We have heard the learned counsel on this preliminary issue for quite some time. We have decided to adopt this course since the Additional Commissioner, while dealing with the revision under section 22A(4), has made reference to sections 13, 15 and 18 of the Act of 1975 which. In our view, is misplaced, however, has reached the correct conclusion and rejected revision filed by the petitioners.

6. The order of the Additional Commissioner is of two short paragraphs which read thus :

"Section 13 of the Maharashtra Private Forests (Acquisition) Act, 1975, provides for appeal against the order of the Deputy Collector. Section 15 of the same Act mentions about limitations, which clearly restrict the period for filing the appeal to 60 days from the date of award. Further section 18 is concerned with the revision in which also there is a binding clause for calling the record of any enquiry or proceedings of the Collector where no appeal has been filed within a period. All the above 3 sections are mandatory and do not give any discretion to Appellate Authorities in respect of condonation of delay.

In the present case, the order has been passed as back as in the year 1979 and the parties have approached this Court in the year 1988, may be with some reasoning but this Court is not empowered to entertain the present revision in view of the clear provisions regarding limitations as provided in the Maharashtra Private Forests (Acquisition) Act, 1975. Hence without going into the other merits of the case, the revision is liable to be dismissed and hence the following order :

1. Revision is dismissed.

2. Parties should be informed accordingly".

The Additional Commissioner, while quoting sections 13, 15 and 18 of the Act of 1975 in his order dated 25th January, 1989, has completely overlooked that the proceedings before him were arising out of the provisions of section 22A of the Amendment Act of 1978. In our opinion. Sections 13, 15 and 18 have no application in the proceedings under section 22A. Section 22A of the Amendment Act of 1978 read thus :

"22A. (1) xxx

(2) After the Collector has determined the area and situation of the land to be restored to any owner of private forest, the Collector shall make an order, that with effect from the date of his order, the land specified therein, which was acquired and vested in the State Government, shall cease to be a reserved forest within the meaning of the Forest Act, be deemed to have been regranted to the owner and shall be revested in him, subject, however, to all encumbrances, if any, lawfully subsisting on the day immediately preceding the appointed day, which shall stand revived. Possession of the land so restored shall be given by the Collector to the owner, as far as may be practicable under the circumstances, within a period of one month from the date of the order.

(3) If the amount payable to the owner of private forest under section 7 has been paid to him or the holder of the encumbrances, if any, the Collector shall determine what would have been the amount of the proportionate amount payable to him under section 7 in respect of the land restored to him under Subsection (2), without taking into consideration the deductions to be made for paying the holders of encumbrances, if any, and shall by order direct the owner to repay the amount so determined to the State Government, within a period of six months from the date of receipt of such order by the owner. If the amount is not repaid in time, it shall be recoverable as an arrear of land revenue. When any amount due is repaid by the owner to the State Government, he shall be entitled to make necessary adjustment with the holders of the encumbrances, if any, for any payment made to them by the State Government in respect of the land revested in the owner.

(4) Notwithstanding anything contained in the Code of this Act. no appeal shall He against any decision or order of the Collector under this section, but the Commissioner or the State Government may, within a period not exceeding one year from the date of such decision or order.

(a) call for the record of any inquiry or proceedings of the Collector for the purpose of satisfying himself or itself as to the legality or propriety of such decision or order, and as to the regularity of such proceedings, as the case may be. And

(b) pass such order thereon as he or it deems fit

Provided that, no such decision or order shall be modified, annulled or reversed, unless opportunity has been given to the interested parties to appear and to be heard.

 

 (5)  x x x  
 

 (6)  x    x    x   
 

 Sections 13, 15 and 18 of the Act of 1975 read thus :  
   

 "13. Notwithstanding anything contained in the Code, an appeal shall lie to the Tribunal against an award of the Collector under section 9 or against any order of the Collector passed under section 11 or 12.  
 

 15. Save as otherwise provided in section 6, every appeal made under this Act to the Tribunal shall be filed within a period of sixty days from the date of the award or as the case may be, order, of the Collector. The provisions of sections 4, 5 12 and 14 of the Limitation Act. 1963, shall apply to the filing of such appeal.  
 

 18. Where no appeal has been filed within the period provided for it against any decision, order or award of the Collector, the State Government may, within a period not exceeding one year from the date of such decision, order or award  
 

 (a) call for the record of any enquiry or proceedings of the Collector for the purpose of satisfying itself as to the legality or propriety of any decision, order or award passed by, and as to the regularity of the proceedings of, such Collector, as the case may be, and  
 

 (b) pass such order thereon as it deems fit :  
 

 Provided that no decision, order or award of the Collector shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard".    
 

7. It is apparent that the sections 13, 15 & 18 deal with the Appeals, Limitation and Revision arising out of the proceedings under sections 9, 11 and 12 of the Act of 1975. Section 9 provides Collector to determine amount payable to the owner under section 7. Section 11 deals with deduction of amount of encumbrances for amount payable to the owner and section 12 provides payment of amount for extinguishment of rights of other persons. Sub-section (4) of Section 22A of the Amendment Act of 1978 expressly eliminates the right of appeal and the only remedy provided under that provisions is revision. It is, therefore, apparent that these sections do not have any connection whatsoever with the proceedings under section 22A. Section 22A(4) provides Independent mechanism namely revision, to call for the record of an enquiry or proceedings of the Collector under that section for the purpose of satisfying himself to the legality or propriety of decision or order, and as to the regularity of proceedings, as the case may be. In view of Sub-section (4) of section 22A which provides a remedy of revision, in our opinion, sections 13, 15 and 18 of the Act of 1975 do not have any application in the proceedings under section 22A. The Commissioner, after making reference to sections 13, 15 and 18 of the Act of 1975, has recorded a finding that those provisions do not confer any power to condone the delay and he cannot entertain the revision which, in our view. Is wrong and hence we set aside the reasoning part of the judgment of the Additional Commissioner. However, we do not wish to disturb the operative part of the impugned order for the reasons recorded in the later part of the judgment.

8. In so far as the first contention of Mr. Godbole, the learned counsel for the petitioners, is concerned, he fairly conceded that the provisions of

section 29(2) of the Limitation Act are not attracted, when confronted with the judgment of the Apex Court in Officer on Special Duty (Land Acquisition) and Another v. Shah Manilal Chandulal and others,'. In paras 13 to 15 of the report, the Apex Court has discussed and specifically dealt with section 29(2) of the Limitation Act and has finally come to the conclusion that the authority, such as the Collector or Land Acquisition Officer, is not a Court when he acts as a Statutory Authority under section 18(1) of the Land Acquisition Act, and hence provision of section 5 of the Limitation Act would not apply, to condone the delay. Similarly, we find, the Apex Court in Sakuru v. Tanaji,2 had taken a identical view and in para 3 of the report, held that the provisions of the Limitation Act, 1963 apply only to the proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or Executive Authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. It is further held thai the Collector before whom the appeal was preferred by the appellant therein under section 90 of the Act not being a Court, the Limitation Act, as such, had no applicability to the proceedings before him. Similar view had been taken by the Apex Court earlier in Anthoni Munici-pality v. Labour Court Hubli, (See para 11). This Court, while dealing with the writ petition in Sangli MiraJ & Kupwad City Municipal Corporation v. Balkrishna Haribhau. Sawant and others, has followed the judgment of the Apex Court in the Sakuru case (supra). In view of this settled position of law, we have no hesitation in holding that the Commissioner, before whom the revision was filed by the petitioners under section 22A(4) of the Act of 1978, is not a Court and, therefore, the provisions of the Limitation Act would not apply and he has rightly rejected the revision. However, we have already observed in the earlier part of the judgment that the error has been committed by the Commissioner in reasoning part of the judgment, applying the provisions of Sections 13, 15 and 19 of the Act of 1975.

9. In view of the above we proceed to consider the second and third submissions of Mr. Godbole on merits. He contended that while declaring the said land as a private forest, the procedure laid down under the provisions of the Indian Forest Act and the Act of 1975 has not been followed. He relied on the observations made by this Court in Juju Waghmare's case (supra) and contended that mere issuance of notice under section 35(3) is not sufficient to construe as a conclusive proof of declaration of forest land and it requires an enquiry under section 6 of the Act of 1975 and during enquiry an opportunity of being heard ought to be given to the landlord. As far as the above legal proposition is concerned, it is not disputed by Mr. Palekar, learned A. G. P. and in view of the settled position of law, we need not have to examine the correctness of the argument of Mr. Godbole. However, what is required to be seen is whether the petitioner No. I

was justified in approaching this Court at belated stage making the aforesaid grievance. Mr. Patekar, learned A.G.P., contended that the petitioner No.l was aware about the proceedings under section 35(3), initiated in 1975 and also proceedings under section 22A of the Amendment Act of 1978 in the year 1979 itself. We have perused the original file maintained by the respondent in connection with the proceedings under section 22A of the Amendment Act of 1978. Our attention was invited to the three documents in the file. The first document is dated 21st June, 1979, which is a notice issued to the petitioner No.1 of the hearing in the proceedings under section 22A. In his submission, there is an endorsement of the petitioner No.l having received the notice. The next document is the statement of the petitioner, signed by him. This document does not specify the date. The third document is a statement of the petitioner No. 1 recorded on 10th May, 1979 and the said petitioner has countersigned it on 10th July, 1979, Mr. Godbole, learned counsel for the petitioners, after taking instructions from the petitioner No. 1 who was present in the Court, denied the signature on the first document, namely, the notice dated 21st June, 1979. As far as signatures on other documents are concerned, the petitioner No. 1 admitted his signatures. However, Mr. Godbole contended that the petitioner No. 1 has countersigned the cyclostyled statement and hence cannot be relied upon for any purpose whatsoever. The statement of the petitioner No.l recorded on 10th May, 1979 does make reference to the proceedings under section 35(3). The said petitioner who reads Marathi, admits his signature which he is supposed to have made after reading the contents of his statement. AH the aforesaid documents are in Marathi. From these documents, it is apparent that the petitioner was aware about the proceedings under section 35 of the Indian Forests Act in the year 1975 itself. It is further clear that he had received the notice in the proceedings under section 22A wherein his statement was also recorded. We note that the stand of the Government in respect of proceedings under section 35(3) of the Indian Forests Act was that they followed the procedure while declaring the said land as private forest. In view of this, we have no hesitation in holding that the petitioners had knowledge of the proceedings under section 35(3) of the Indian Forests Act in 1975 and under section 22A of the Amendment Act of 1978 in the year 1975 itself. The petitioner ought to have had approached the appropriate authorities agitating their grievance that the said land is hot a private forest within the meaning of the provisions of the aforesaid Act within reasonable time. He took nine years to agitate his grievance, after the receipt of the notice under section 22A in June, 1979. So far as the third submission of Mr. Godbole is concerned, we are satisfied that the petitioners were served wiith ,the notice in the proceedings under section 22A. In view thereof, we are of the opinion that the petition suffers from gross delay and latches and on this ground we reject the contention of Mr. Godbole, learned counsel for the petitioner, that the procedure under section 35(3) of the Indian Forests Act was not followed and the consequential order of the Dy. Collector, Private Forest, Thane, dated 28th August, 1979 passed under section 22A without affording an opportunity to the petitioner, of being heard.

10. In view of our finding on the first contention of Mr. Godbole, on limitation, we do not intend to consider the argument of Mr. Palekar,

learned A.G.P. that the remedy under Sub-section (4) of section 22A is available only to the State Government and the Commissioner although we have our reservation on this submission.

11. Under Sub-section (1) of section 22A the Collector is empowered to hold an enquiry into the total holding of the land of the owner of private forest that becomes less than twelve hectares on the appointed day on account of acquisition of his forest land under this Act or that if the total holding of land of such owner was already less than twelve hectares on the day immediately preceding the appointed day, the Collector shall determine whether the whole of the forest land acquired from such owner or what portion thereof shall be restored to him. so, however, that his total holding of land, on the appointed day, shall not exceed twelve hectares. In the present petition, the Collector held that the total holding of the petitioners on 29th August, 1979 was 17 hectares and 11 Ares and therefore it would not become less than 12 hectares if the 1 Hectare and 40 Ares land is acquired. We do not find any valid reason to interfere with this finding of the lower authority in the proceedings under section 22A of the Amendment Act of 1978. Moreover, as observed above, the petitioners have approached the concerned authority and even this Court at belated stage and hence the Impugned orders cannot be faulted.

12. In the result, the writ petition falls and it is dismissed with no order as to costs. Rule is discharged.

13. Mr. Godbole. learned counsel for the petitioners, prayed for continuation of the interim order for a period of eight weeks. Mr. Palekar leaves it to the Court. In view of the fact that the interim relief is running in favour of the petitioners all these years, we are Inclined to grant the request of Mr. Godbole. The interim relief shall remain operative for a period of eight weeks from today.

14. Authenticated copy of this order may be made available to the parties.