Bombay High Court
Shri Shashikant Kantilal ... vs The State Of Maharashtra And Ors on 26 April, 2017
Bench: A.S. Oka
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rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 420 OF 2015
Shri Shashikant Kantilal Pokharna ... Petitioner
Vs.
The State of Maharashtra & Ors. ... Respondents
.......
Mr.Suresh M. Sabrad for the Petitioner.
Mr. A. B. Vagyani, GP a/w. Mr. Manish Pabale, AGP for Respondent
nos. 1 to 6.
........
CORAM : A.S. OKA & A.K. MENON, JJ.
RESERVED ON : 12th APRIL, 2017
PRONOUNCED ON : 26th APRIL, 2017
JUDGMENT (Per: A.K.Menon J.)
1. By this Writ Petition the petitioner seeks an order setting aside
Mutation Entry no. 4280 in the records of rights (Village Map No.6)
pertaining to Taluka-Mulshi, District Pune in respect of land bearing
Survey no. 38 admeasuring 11 Hs 69Rs cultivable land and 3 Hs 54Rs
of barren land total land admeasuring 15Hs 3Rs situated at Devghar,
Jambhulne, Taluka Mulshi, District Pune (herein after referred to as
"the said land"). By the impugned Mutation Entry the land was to be
treated as forest land. The petitioner also seeks restoration of the
earlier Mutation Entry No.1062 and a direction setting aside the
impugned communication dated 14th March, 2012 issued by the
Conservator of Forest, Taluka Maval, Pune - Respondent no. 2
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2. By the said letter dated 14 th March, 2012 the petitioner was
informed that in view of the Forest (Conservation) Act, 1980, the
aforesaid mutation entry came to be made. By the impugned letter
respondent no. 2 justified mutation entry and informed the petitioner
that, should the petitioner be desirous of carrying on non forest activity,
the petitioner would require to obtain permission from the Central
Government. Apparently, the said letter came to be addressed to the
petitioner without him being given a hearing. It transpires that
although impugned mutation entry was made on or about 30 th May,
2006, the petitioners were unaware of it since he had no notice of the
change in the mutation entry.
3. According to the petitioner, the said land was owned by members
of Katkari family and respondent no. 1, considering the holding of
family members, had declared the land as forest without any notice or
notification. It is the petitioner's case that the mandatory notification
under Section 35(3) of the Maharashtra Private Forests (Acquisition)
Act, 1975 (for short "the Private Forest Act, 1975") was not issued.
According to the petitioner, on 16 th May, 1979, the respondent no. 4
being the Assistant Collector, Haveli Division, Pune had passed an
order under Section 22 of the Private Forest Act, 1975 excluding the
said lands, since the individual holdings of the Katkari family members
was below 12 Hectares.
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4. On 24th December, 1979 the members of the Katkari family made
application for sale of the said land. This application was made to the
respondent no. 6 - The Divisional Commissioner, Pune Division, Pune
who after making inquiries passed an order dated 22 nd May, 1995
granting permission for dividing the said land into plots and its
disposal.
5. On 2nd December, 1985, the sale deed in respect of the said land
was executed for an amount of Rs.17,250/- described as Nazrana was
deposited in the Government treasury. Thereafter the petitioner
applied to the respondent no. 5 - Tahsildar, Tal. Mulshi, Dist. Pune for
permission to use land for non agricultural purpose. Permission for non
agricultural use was granted on 13th January, 1986 while permitting the
petitioner to use the same for residential purposes. The petitioner
thereafter got layout plans sanctioned. After dividing the land into
plots, original Mutation Entry No. 1062 was made on 28 th May, 1987.
It is only much later on 4 th February, 2001, the respondent no. 2 issued
a letter to the respondent no. 5, calling upon respondent no. 5, to
restore the said land to its original position by virtue of provision under
the Forest (Conservation) Act, 1980. All this transpired according to
the petitioner without any notice to the parties concerned. There was
no notice to the petitioner.
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6. The petitioner thus approached respondent no. 2 for deletion of
the said entry pointing out the aforesaid facts and urged his case that
the said land was excluded from the purview of Private Forest Act,
1975. However, the impugned letter of 14 th March, 2012 came to be
issued once again without any notice. The petitioner thereafter learnt
of the order passed by the Hon'ble Supreme Court in the case of Godrej
& Boyce Manufacturing Co. Ltd. vs State of Maharashtra and Ors.
[2014 3 SCC 430] inter alia holding that notice under section 35(3) of
the The Indian Forest Act, 1927, must be issued and served upon the
concerned parties.
7. Mr.Sabrad the learned counsel for the petitioner submitted that
the said land was excluded from purview of Private Forest Act, 1975
with effect from 16th May, 1979. Mr.Sabrad further submitted that in
the present case no notice under section 35(3) of the Indian Forest Act,
1927 was issued and in the absence of such notice the declaration of
the land as forest was untenable and liable to be set aside. It would be
appropriate to refer to the relevant paragraphs of the Indian Forest Act,
1927 which reads thus: -
Sec 35. Protection of forests for special purposes.--
(1) The State Government may, by notification in the Official Gazette,
regulate or prohibit in any forest or waste-land--
a. the breaking up or clearing of land for cultivation;
b. the pasturing of cattle; or
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c. the firing or clearing of the vegetation; when such regulation or
prohibition appears necessary for any of the following purposes:--
(i) for protection against storms, winds, rolling stones, floods and
avalanches;
(ii) for the preservation of the soil on the ridges and slopes and in
the valleys of hilly tracts, the prevention of landslips or of the
formation of ravines, and torrents, or the protection of land against
erosion, or the deposit thereon of sand, stones or gravel;
(iii) for the maintenance of a water-supply in springs, rivers and
tanks;
(iv) for the protection of roads, bridges, railways and other lines of
communication;
(v) for the preservation of the public health.
(2) The State Government may, for any such purpose, construct at its
own expense, in or upon any forest or waste-land, such work as it thinks
fit.
(3) "No notification shall be made under sub-section (1) nor shall any
work be begun under sub-section (2), until after the issue of a notice to the
owner of such forest or land calling on him to show cause, within a
reasonable period to be specified in such notice, why such notification
should not be made or work constructed, as the case may be, and until his
objections, if any, and any evidence he may produce in support of the
same, have been heard by an officer duly appointed in that behalf and
have been considered by the State Government.
8. While considering the effect of section 35(3), the Supreme Court
held that service of notice was mandatory. The Court considered the
expression "issue" and held that the word "issue" should be read in its
wider perspective and would entail that mere issuance of notice under
Section 35(3) of the Indian Forest Act, 1927 is not sufficient for any
land to be declared as private forest within the meaning of Section 2(f)
(iii) of the Maharashtra Private Forest (Acquisition) Act, 1975. The
Supreme Court held that the broader meaning of the word "issue" has
to be considered.
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9. In an affidavit in reply in the present petition filed by the
Assistant Conservator of Forests a peculiar stand has been taken. On
one hand it contended that owner of the land was "earlier" issued
notice under Section 35(3) of the Indian Forest Act, 1927 and
therefore, the said land may also be "private forest" as per section 2(f)
(iii) of the Private Act 1975. It is contended that being "private forest"
as per inclusive definition of the phrase given in its basic definition read
with meaning of the word "forests" as per section 2(c-i) of the Act
which is sufficient for its acquisition.
10. It is also contended that the forest area was "Deemed Reserved
Forests" as on the appointed day i.e. 30 th March, 1975 which land stood
vested in the Central Government. 11.72 Hs of land in question is stated
to have been restored under section 22(A) of the Maharashtra Private
Forests (Acquisition) Act, 1975 by three orders dated 16 th May, 1979
the forest areas were restored back to the owners and / or their
successors under the Forest (Conservation) Act, 1980 which came into
force on 25th October, 1980. This Act required prior approval of the
Government of India in case any order was to be issued permitting non
Forest use. According to the deponent permission for non forest use
was issued without prior approval of the Ministry of Environment and
Forest and therefore not valid.
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11. Mr. Vagyani, the Government pleader while opposing the petition
relied upon the record maintained by the State and the Register kept for
the purpose at the Office of the Pune Forest Division and referred to as
"the Golden Register". The original register was produced for our
perusal. Mr. Vagyani relied upon page 12 of the said Golden Register
referred to entry at Survey No.38 in the said register which identifies
the said land. Mr. Vagyani submitted that the entry indicates that notice
under Section 35(3) of the Indian Forest Act, 1927 had been issued to
the holder of the land. The extract of the said register is placed on
record and annexed as R-3.
12. The affidavit in reply also relies upon communications between
Revenue and Forest Department of the State Government and the Chief
Conservator of Forest which in our opinion are of no consequence in the
facts of the case. The learned Government Pleader has not been able to
show us the relevance of this correspondence.
13. The Affidavit of the Assistant Conservator of Forest records in
paragraph 8 that acquisition of the areas is fully justified based on the
definition "Forest" under Section 2(f) of the Maharashtra Private
Forests (Acquisition) Act, 1975 and no other condition is required for
treating these areas as "Deemed Reserved Forest". Furthermore it is
stated that the said areas fulfilled the criterion specified in Section 2(f)
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(iii) because notice under Section 35(3) of the Indian Forest Act, 1927
was issued to the then owner. However, save and except, a bare
statement in the affidavit in reply we do not find any evidence to
establish issuance / service of notice. The contents of the Golden
Register also do not in any manner establish that the notice had been
issued or served.
14. In the circumstances, we are of the view that the petitioner's case
that no notice has been issued under Section 35(3) must be upheld and
relying upon decision in Godrej Boyce (supra), we are of the view that
service of notice under Section 35(3) was indeed necessary and there is
no evidence on record to show that such notice has been issued.
15. The impugned letter in the present case has proceeded on the
presumption that the lands which are private forests vest in the State
Government under Section 3 of the said Maharashtra Private Forests
(Acquisition) Act, 1975. In our view, having considered the contents of
the affidavit in reply and the document relied upon there is nothing to
establish that the land bearing survey no.38, situated at Devghar,
Jambhulne, Taluka Mulshi Dist. Pune is a private forest as
contemplated under Section 2(f)(iii) of the Maharashtra Private Forests
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(Acquisition) Act,1975 and the same does not vest in the State by virtue
of Section 3. Having come to this conclusion, the impugned order
requires to be set aside.
16. Before parting with this judgment we must also record that in
(Sinhagad Technical Education Society vs. Dy.Conservator of Forest).
WP/7235/2013, this Court has delivered judgment dated 3 rd February,
2015 to which one of us A.S.Oka,J. was party, this Court considered
the law on the controversy which arises in the present case as well and
had applied the law as laid down in Godrej Boyce (supra).
17. For avoidance of doubt we clarify that while dealing with the
present case we have only held that the said lands do not constitute
"private forest" under the Maharashtra Private Forests (Acquisition) Act,
1975. We have not examined the applicability of provision of the Indian
Forest Act, 1927 and of the Forest Conservation Act, 1980 or any other
provision or whether or not the same constitutes private forest or form
part of the private forest. We restrict this adjudication to the status of
the land only to the extent as contemplated under Section 2(f)(iii). This
aspect we have answered in the negative. In the circumstances we pass
the following order :
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(a) Impugned order dated 14th March, 2012 is set aside.
(b) The mutation entry no. 4280 in respect of land survey
no.38 situated at Devghar, Jambhulne, Taluka Mulshi,
District Pune is hereby set aside and mutation no. 1062 is
restored.
(c) Rule is made absolute in the above terms.
(d) There will be no order as to costs.
(A.K. MENON, J) (A.S. OKA, J)
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