Bombay High Court
Illyas Mamu Mohd Yusuf Lakhara vs The Union Of India And Ors on 25 November, 2016
Bench: S.V. Gangapurwala
WP 389/09 & PIL 71/11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.389/2009
WITH
CIVIL APPLICATION No.1746/2015
Iliyas Mamu S/o Mohd.Yusuf Lakhara,
Age: 40 years, Occu: Journalist,
R/o Baidpura, Sadar Bazar, Jalna.
..Petitioner..
VERSUS
1] The Union of India,
Through its Secretary,
Forest Department, New Delhi.
2] The State of Maharashtra,
Through the Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-32.
3] The Deputy Conservator of Forests,
Aurangabad Forest Division,
Aurangabad.
4] The District Collector, Jalna,
District Jalna.
5] The Sub-Divisional Officer (Revenue),
Jalna, District Jalna.
6] The Tahsildar, Jalna,
District Jalna.
7] The District Forest Officer, Jalna,
District Jalna.
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8] Shaikh Kasam S/o Sk.Hasan,
Age:75 years,Occu.Agriculture,
R/o Burhannagar,Ramnagar,Jalna,
District Jalna.
9] Shaikh Ramzan S/o Shaikh Hasan,
Age:72 years, Occu: Agriculture,
R/o As above.
10] Shaikh Mohd.S/o Shaikh Hasan,
Age:70 years, Occu: Agriculture,
R/o As above.
11] Aslam S/o Shaikh Ramzan,
Age:38 years,Occu: Agriculture,
R/o As above.
12] Abdul Rashid S/o Shaikh Mohd.
Age:35 years, Occu: Agriculture,
R/o As above.
13] Jalan S/o Mohd.Imam,
Age: 48 years, Occu: Agriculture,
R/o As above.
14] Ibrahim S/o Mohd.Imam,
Age:42 years,Occ: Agriculture,
R/o As above.
15] Kadir S/o Shaikh Ramzan,
Age:36 years,Occ: Agriculture,
R/o As above.
16] Akbar S/o Shaikh Mohd.,
Age:32 years,Occ: Agriculture,
R/o As above.
17] Hadi S/o Shaikh Ramzan,
Age:35 years,Occ: Agriculture,
R/o As above.
18] Vinaykumar S/o Rikhabchand Kothari,
Age: 55 years, Occu: Business,
R/o Near Shivaji Statue,
Opp.Rest House, Jalna.
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19] Ayyub Khan S/o Jaan Mohammed Khan
alias Johari Khan,
Age:60 years,Occu.:Business,
R/o Moti Bazar, Mangal Bazar,
District Jalna.
20] Uaman Khan S/o Rasood Khan,
Age:45 Years,Occ:Business,
R/o: as Above.
21] Madhukar S/o Kanu Rahtod
Age:45 years,Occ:Medical Practitioner,
R/o Vyankatesh Nagar,Jalna,
22] Premkishore S/o Ramalal Gondodoya
Age:66 years,Occ:Nil
R/o Kadrabad,
Jalna,District: Jalna.
23] The Municipal Council,
Jalna, Through its Chief Officer,
Jalna. Dist.Jalna.
24] Mr.Rajesh S/o Ramkishan Mundada,
Age:44 years,Occu: Business,
R/o SRPF Road, Jalna.
District Jalna.
..Respondents..
.....
S/Shri P.R.Patil & Shri S.B.Bhapkar, Advocates for
Petitioner.
Shri S.B.Deshpande, Assistant Solicitor General for
Respondent No.1.
Shri S.B.Yawalkar, AGP for Respondent Nos.2 to 7.
Shri S.S.Kazi, Advocate for Respondent Nos.8,10,13,14,15
& 17.
Shri A.S.Bajaj, Advocate for Respondent No.9.
Shri U.R.Awate, Advocate for Applicant in C.A.1746/15.
Shri S.V.Kshirsagar, Advocate with Shri A.S.Deshpande,
Advocate for Intervenor.
Shri P.N.Kalani, Advocate for Intervenor.
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PUBLIC INTEREST LITIGATION NO.71/2011
WITH
CIVIL APPLICATIONS NOS.337/2012,1345/2012 & 11691/2014
Vijay S/o Namdeo Lahane,
Age 25 years, Occu.Reporter of
'Janta Kare Pukar',Jalna,
R/o Nutan Wasahat, Jalna,
Tq. & District Jalna.
..Petitioner..
VERSUS
1] The Union of India,
Through its Secretary,
Forest Department,
New Delhi.
2] The State of Maharashtra,
Through its Secretary,
Revenue & Forest Department,
Mantralaya, Mumbai.
3] Chief Conservator of Forest,
Aurangabad Forest Division,
Aurangabad.
4] The District Collector,
Jalna, District Jalna.
5] Sub-Divisional Officer,
Revenue, Jalna,
District Jalna.
6] The Tahsildar, Jalna,
District Jalna.
7] The District Forest Officer,
Jalna, District Jalna.
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8] Shaikh Jalal Mohd. Imam,
Age: 55 years, Occu.: Agriculture,
R/o Burhannagar, Ramnagar,
Jalna, Tq.& Dist. Jalna.
9] Jalna Municipal Council,
Jalna. Through its Chief Officer,
Jalna. Dist.Jalna.
...Respondents..
.....
Shri P.V.Barde, Advocate appointed as Amicus Curiae.
Shri S.B.Deshpande, Assistant Solicitor General for
Respondent No.1.
Shri S.B.Yawalkar, AGP for Respondent Nos.2 to 7.
Shri U.R.Awate, Advocate for Respondent No.8.
None present for Respondent No.9.
Shri A.S.Bajaj, Advocate for Applicant in CA No.337/2012.
Shri S.V.Kshirsagar, Advocate with Shri Ajay S. Deshpande
Advocate for Applicant in CA Nos.1345/2012 & 11691/2014.
.....
CORAM: S.V. GANGAPURWALA &
K.L. WADANE, JJ.
DATE: 25.11.2016
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1] The Public Interest Litigation is filed claiming
relief to the extent that the respondent - authorities
should take over possession of the land bearing Survey
No.276 situated at Jalna Tq. & Dist.Jalna on the ground
that the same is protected forest land. Further
directions are sought against the authorities to correct
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the revenue record of Survey No.276 in the name of the
State Government.
2] The notices were issued by this Court and on
7.12.2011, ad-interim order was passed directing no
further allotment / transfer by any mode be made by the
respondent - authorities of the writ land. Thereafter,
on 11.1.2012, the petitioner filed an affidavit
expressing his desire to withdraw the PIL. This Court
negatived the request of the petitioner and directed the
petitioner to deposit Rs.1,00,000/- within a period of
one week and if the petitioner fails to deposit the
amount, the Court would consider taking sue motu action
against the petitioner. The amount of Rs.1,00,000/- was
thereafter deposited by the petitioner. On 18.1.2012,
the Court declined to allow the Purshis filed by the
petitioner for withdrawal of the petition and this Court
appointed Shri P.V. Barde, learned Advocate to act as
amicus curiae to assist the Court. From time to time,
orders were passed by this Court. The affidavits are
filed by the officers from the Forest Department so also
from the Revenue Department. During the pendency of the
PIL, even the measurement was directed to be done. We
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had asked the District Superintendent of Land Records to
file an affidavit to explain the details of the
measurement carried out. During the pendency of the
present Public Interest Litigation, intervention
applications are filed by the interested persons. On
10.10.2016, we had directed the learned AGP to file a
detailed affidavit clarifying about the allocation of
alternative land so also clarifying the contents of the
affidavit dated 30.6.2016. Thereafter, a detailed
affidavit has been filed.
3] Writ Petition No.389/2009 is also in respect of
the same subject matter wherein the petitioner claims
similar relief i.e. to cancel the allotment of the
Government land to the extent of 34 Hectares 90 Aares
from Gut No.276 in favour of respondent nos.8 to 17
therein and restore the land to the Government.
Mr.Bhapkar, learned counsel for the petitioner in the
said writ petition has adopted the arguments of Mr.Barde,
learned amicus curiae.
4] Mr.Barde, learned counsel, has taken us through
various Government resolutions, provisions of the
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Hyderabad Forest Act and the orders passed by the
Revenue Department from time to time. Mr.Barde, learned
counsel eruditely canvassed that the land bearing Survey
No.276 at Jalna was notified as a forest land under
notification dated 16 Farwardi 1354 Fasli to the extent
of 34 H 90 R. Land Survey No.276 totally admeasures 96 H
23 R. The same is subsequently bifurcated into Survey
No.276/1 to the extent of 23 H 13 R and Survey No.276/2
admeasuring 2 Acres 10 Gunthas. Mr.Barde, learned
counsel submits that the notification was issued u/s 7 of
the Hyderabad Forest Act, 1326 Fasli notifying the land
under the said notification and within the boundaries
delineated therein as proposed reserved forest. The same
was to the extent of 34 H 90 R in Survey N.276 at Jalna.
According to the learned counsel, once the land is
declared as a proposed reserved forest, the same
continues to be a reserved forest until and unless a
notification is issued for de-forestation of the said
land.
5] In the present case, no notification is
published by the Central Government thereby releasing the
said land from being a proposed reserved forest.
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According to the learned counsel, if any person has got a
claim or interest in the land, which is proposed reserved
forest, then that person has to lodge a claim before the
Settlement Officer. No such claims are lodged before the
Settlement Officer. According to the learned counsel,
once a land is declared as a proposed reserved forest, no
activity of whatsoever nature is permissible in the said
land. The Revenue Department in the year 1980 granted
allotment letters in favour of individuals, which is
beyond the authority of the officers of the Revenue
Department. The authorities under the Revenue Department
could not have exercised their powers over the land,
which is a proposed reserved forest. The said allotment
itself is not in tune with the provisions of the Forest
Act.
6] Mr.Barde, the learned counsel further submits
that the Indian Forest Act came into force from
24.10.1980 and the said Act has got retrospective
operation. The learned counsel relies on the judgment of
the Apex Court in a case of Nature Lovers Movement v.
State of Kerala reported in AIR 2009 Supreme Court (Supp)
1573. According to the learned counsel, the officer of
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the Forest Department has filed an affidavit before this
Court clearly asserting that the land in question is
declared as a proposed reserved forest and no subsequent
notification has been issued for deforestation of the
said land. According to the learned counsel, in the year
2006, it was stated that the meeting has been held to
award alternative land for the Forest Department. No
steps are taken even pursuant thereto. The forest land
is to be protected to maintain the ecology and
environment.
7] Mr.Yawalkar, learned Additional Government
Pleader submits that the land was transferred to the
Revenue Department under resolution of the year 1969.
The said land was in occupation of private individuals
and after following the procedure, the Sanad was also
issued to those in possession and in whose favour
allotments were made. The learned AGP further submits
that the meeting was held with the authorities of the
Forest Department, Revenue Department and it is proposed
to handover alternative site to the Forest Department.
8] We have also heard learned counsel for the
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intervenors in the PIL and the writ petition.
9] It is submitted by the learned counsel for the
intervenors and the respondents that under the resolution
dated 22.3.1969, the land was released in favour of
respective Ek Sala lease-holders. Thereafter, under
order dated 16.4.1980 of the Sub-Divisional Officer,
Jalna, exercising powers u/s 51 of the Maharashtra Land
Revenue Code and referring to the Government resolutions
dated 16.2.1973, 27.12.1978 and 22.3.1969, granted the
land of about 33 H 20 R to the persons, who were shown as
encroachers therein and regularized the possession.
According to them, thereafter even allotment letters are
issued and certificates are granted.
10] Mr.P.R.Patil, learned counsel relies on the
judgment of the Division Bench of this Court delivered in
Writ Petition No.503/1984 dated February 13, 1987, to
submit that the Division Bench had held that in 1969
itself, the Government had deforested the land when the
Government resolution dated 22.3.1969 was published and
the Court proceeded on the basis that the lands were in
fact deforested in the year 1969 itself. The learned
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counsel further submits that the Jalna Municipal Council
published a development plan and this writ land is shown
in the residential zone. The said development plan is
sanctioned on 4.4.1989. Thereafter, construction
permissions are granted and the houses are erected. More
than 600 persons have erected the houses and residing
therein. Mr.P.R.Patil, the learned counsel also relies on
the judgment of the Apex Court in the case of Tata
Housing Development Co.Ltd. & another v. Goa Foundation &
other reported in (2003) 11 SCC 714 and the judgment of
the Apex Court in the case of Godrej & Boyce Mfg. Co.
Ltd. v. State of Maharashtra reported in (2014) 3 SCC
430, to submit that unless further steps are taken of
issuing notification of land being a reserved forest, the
land cannot be said to be a forest land.
11] Considering the documents placed on record and
the submissions canvassed by the learned counsel for the
respective parties, it is manifest that the land
admeasuring 34 H 90 R in Survey No.276 was declared as a
proposed forest land under the notification dated 16
Farwardi 1354 Fasli i.e. equivalent to the year 1944. At
the relevant time, the provisions of the Hyderabad Forest
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Act, 1326 Fasli were applicable to the region
(hereinafter referred to as the Act of 1326 Fasli).
12] The said notification appears to have been
published resorting to Section 7 of the Act, 1326 Fasli.
The procedure is laid down for further notifications.
Section 10 of the said Act states that when a
notification has been issued u/s 7, the Forest Settlement
Officer shall publish in Urdu and in the local vernacular
in the Jarida (official gazette) and at the headquarters
of the Taluka in which any portion of the land included
in the notification, is situated and in every village and
town situated within or adjoining the land. The details
to be given in the proclamation are also specified.
After the issuance of the proclamation, enquiry is
required to be conducted by the Forest Settlement
Officer and the procedure is laid down for the enquiry,
thereafter final notification is required to be issued
u/s 18 of the Act, 1326 Fasli to be published in Jarida
(official gazette) specifying the limits of the forest
land, which is intended to be reserved and declaring the
same to be reserved from a date to be fixed by such
notification.
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13] From the record made available to us, it
transpires that except issuance of notification u/s 7,
declaring that it is proposed to constitute such land to
be reserved forest, no further steps at any point of time
have been resorted to. No proclamation is published u/s
10 nor any final notification u/s 18 is published. The
only notification on record is u/s 7 declaring that it is
proposed to constitute the land notified therein as a
reserved forest.
14] It is also not disputed that the said land was
occupied by various persons. In the year 1969, more
particularly 22.3.1969, the Government of Maharashtra
issued a resolution thereby resolving to release
permanently for cultivation of forest lands to the Ek-
Sala lease-holders. Some of the relevant clauses of the
said resolution are produced hereunder:-
"i] All forest lands given on eksali basis should
now be released permanently for cultivation to
the respective eksali lease holders;
ii] Such of these lands as are on the border of
forest should be deforested and transferred to
revenue Department for release to respective eksali
lease-holders;
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iii] Such of these lands as are in the midst of the
forest should also be deforested and released to the
respective lease holders. However the control over
the lands should remain with the Forests department.
For this purpose the forest officers should be
empowered to exercise the power of revenue officers
on the lines of the orders issued in respect of
forest villages and settlements vide Government
Revolution no.FLD-426/1/Y, dated 22nd May 1967."
The said Government resolution was subject matter of
consideration before the Division Bench of this Court in
Writ Petition No.503/1984 decided on February 13, 1987.
It was observed by the Court as under:-
"We also find that Government of India has not
taken any steps in the matter for last over
seven years when the Government resolution was
published by the State Government in the year
1969 for assisting the landless labourers."
15] Consistently, the Government has issued
resolutions regularizing the encroachments. On
14.8.1972, Government resolution is issued declaring that
the encroached forest lands to be transferred to the
Revenue Department. Thereafter, again the Government
resolution is issued on 27.12.1978 thereby regularizing
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subsequent encroachments on the forest lands subject to
certain conditions. Thereafter, on 27.12.1979, the
Government further issued resolution for regularization
of forest land in favour of the encroachers as on
31.3.1978.
16] On 16.4.1980, the Sub-Divisional Officer has
allotted the writ land to the persons prior to coming
into force the Indian Forest Act, 1980. The Indian
Forest Conservation Act, 1980, came into operation on
25.10.1980 and prior to that, the said land was already
allotted as the persons to whom it is allotted were found
in possession of the said property. Thereafter, further
events have taken place such as issuing allotment orders
in favour of the persons in occupation of the said lands.
On 31.7.1980, Sanad was issued in favour of the
allottees. Thereafter, permission to sell was granted
and the said orders were also subject matter of
challenge. On 20.8.1981 purchase orders were issued.
The permission to sell that was given was subject matter
of challenge before the higher authorities and before the
State Government. The said permission was upheld upto
the State and the same became final.
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17] Writ lands thereafter were included in the
development plan. The development plan for the Jalna
city was sanctioned on 4.4.1989. In the said development
plan, these lands are shown for residential purpose. It
is not disputed that on these lands, the construction
permissions are granted and the buildings are erected
long back. No trace of forest exists on these lands. In
fact, since beginning, these lands were never used as
forest lands. The writ land was cultivated even prior to
1969 as would be clear from the orders. Now the property
has been shown as reserved for residential purpose,
necessary construction permissions are given and the
buildings are constructed for more than 30 years. The
persons are in occupation of the same and in absence of
any further notifications being issued under the Act of
1326 Fasli and/or the Indian Forest Conservation Act and
in the wake of the fact that the said land was deforested
and handed over to Revenue Department, it would not be
possible to hold as on date that the forest land exists.
More over, even the State Government has acted over its
decision of handing over the said land to the Revenue
Department. It would be clear that from Gut No.276/1,
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land admeasuring 58 H 66 R is given to the Police
Training Institute and now the same is being used for the
activities of Police Training Institute.
18] Considering the aforesaid conspectus of the
matter, the reliefs claimed about cancellation of
allotment cannot be considered.
19]
Though we have not granted any relief in the
petition for the reasons discussed supra, however, we
express our displeasure for the manner in which the State
and its authorities have dealt with the land which was
proposed for forest. Instead of proceeding further with
issuance of further proclamation and notification, as
prescribed under the Act of 1326 Fasli, the State
released the land and handed it over to Revenue
Department. Efforts ought to have been made to preserve
the land and make it a forest. Now as far as writ land
is concerned, position has become irreversible.
20] Be that as it may. It is also important to
maintain a balance between sustainable development on one
hand and ecology and protection of environment on
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another. The affidavit has been filed wherein it is
clearly stated that the State has agreed to allot
alternative land as a forest land. The forest land and
the land, which is proposed to be allotted as a forest
land, encroachment exists. Initially, the same was
decided in the year 2006 and again in 2016, the meeting
is held on that count. The State certainly owes
responsibility to give some alternative land to be
maintained as a forest land, we hope and trust that the
State would make positive endeavour to transfer some
alternative land to be maintained as a forest land and
this would be done on priority basis.
21] We appreciate the efforts of Mr.P.V. Barde, the
learned amicus curiae in assisting the Court.
22] The Public Interest Litigation and the writ
petition accordingly stand disposed of. No further
costs.
23] Out of costs of Rs.1,00,000/- deposited by the
petitioner in this Court, 50% of the costs be transferred
to Legal Aid Sub-Committee at Aurangabad Bench and 50% of
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the costs be transferred to Aurangabad High Court Bar
Association.
24] All civil applications also stand disposed of.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)
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