M/S. Global Estate Developers vs State Of Maharashtra Through Its ...
2017 Latest Caselaw 3306 Bom

hcs
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                         WRIT PETITION NO.14168 OF 2016


      M/s.Global Estate Developers                            .. Petitioner
            Vs.
      State of Maharashtra & Others                           .. Respondents


      Mr. Drupad Sopan Patil for the Petitioner.
      Mr. Manish M. Pabale AGP for the Respondent-State.
      Ms. Tanmayi Rajadhyaksha i/b Jayakars for Interveners.


                                    CORAM : A.S. OKA & A.K. MENON, JJ.

                         RESERVED ON :              5TH MAY, 2017

                   PRONOUNCED ON :                  19TH JUNE, 2017

      JUDGMENT (PER A.K. MENON, J.)

1. Rule.

2. Rule made returnable forthwith. By consent of the

parties taken up for final hearing. Initially, when this matter was

heard for admission, this Court found, prima facie, that this case

would be covered by the decision in Godrej and Boyce

Manufacturing Company Limited v/s State of Maharashtra 1

and accordingly, the petition was notified for final disposal. The

State thereafter filed an affidavit in reply on 18th April, 2017. An

attempt at intervention was made by third parties on the ground

that in a group of petitions raising similar issues, an order was 1 (2014) 3 SCC 430

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passed directing that copies of the similar petitions should be served

on the intervenor. However, no such order was produced by the

intervenor. Leave was granted to take out an application for

intervention, if so advised. However, on 4th May, 2017 the counsel

appearing for the intervener stated that she did not wish to apply

for intervention.

3. This petition impugns mutation entry No.139 dated 30th

September, 2008 effected by the Gaon Kamgar Talathi - Respondent

No.7 whereby he recorded that the land forming subject matter

of the petition was subjected to the provisions of the Maharashtra

Private Forest (Acquisition) Act, 1975 (for short "Private Forest

Act"). The petitioners seek a declaration that their land is not

forest land and therefore the impugned mutation entry is liable to

be quashed and set aside.

4. The facts in brief are as follows : The petitioners had

purchased land bearing Gat No.7 (Old Survey No.3 Hissa No.2/2)

admeasuring 4 H and 92 R situated at Village Pangloli, Taluka

Maval, District Pune. In the year 1990-91 a consolidation scheme

was effected in village Pangloli and the land bearing Survey

No.3/2/2 was renumbered as Gat No.7. The scheme was recorded in

the revenue record through mutation entry No.1 dated 27th June,

1991. The land was purchased from erstwhile owners by the

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petitioners' partners after taking search of the revenue record and

after being satisfied about the title of their vendors. It appears that

the partners of the petitioners also sought information about the

land from the Forest Office and in response to the query on behalf

of the petitioners, the Forest Office confirmed that the said land is

not subject matter of any notice or notification under the Private

Forest Act. The petitioners have relied upon correspondence to

this effect (see Exhibit "B"). It is in these circumstances that the

petitioners purchased the land vide sale deed dated 19th

November, 2007 from their vendors M/s. San Sif Investment. The

sale deed came to be registered with the Sub-Registrar of

Assurances under Serial No.5260 of 2007 and the name of the

petitioner was recorded in the 7 X 12 extract vide Mutation Entry

No.117 dated 10th December, 2007.

5. It is the petitioners' case that the said land was never

forest land and not subjected to any forest related activities.

However, by the impugned entry the Gaon Kamgar Talathi has

recorded that the petitioners' land is subject to the provisions of

the Private Forest Act. No notice was given of the said entry to

the petitioners or its partners. The petitioners have contended that

they were using land for grazing animals and for cultivating crops

like Jawar, Harbhara etc.

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6. The petitioners have averred that no notice was ever

received from the forest office. Being aggrieved by the

impugned mutation entry, the petitioners filed RTS Appeal

No.622 of 2014 and Application No.288 of 2010 before the Sub-

Divisional Officer, Maval for deleting the impugned Mutation Entry.

The appeal and said application are still pending.

7. Mr. Patil, learned counsel appearing for the petitioners

has contended that the petitioners' appeal and application are

pending for no apparent reason. Mr. Patil further contended that

in view of the decision of the Supreme Court in Godrej and Boyce

Manufacturing Co. Ltd. (supra) mere issuance of notice under

Section 35(3) of the Indian Forest Act, 1927 was not sufficient

since such a notice was required to be served. In the present case

the notice has not been served. It is submitted that the impugned

mutation entry was recorded without giving any notice to the

petitioners, therefore, in violation of principles of natural justice.

Secondly, the land was never declared as a "private forest" and no

notice under Section 35(3) was received. He submitted that Gat

No.7 was never a subject matter of any notice and it appears

that notification has been issued without taking into consideration

the Consolidation Scheme of 1991. No notice under Section 145

of the Indian Forest Act was published and by virtue of the

decision in Godrej and Boyce (supra) it was impermissible for

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the respondents to contend that the land was a forest land. Mr.

Patil submitted that the petitioners were deprived of an

opportunity to show cause, apropos the mutation entry and as

owner of the land, it was entitled to file objections and could have

led evidence in the matter. This opportunity would have been

available to the petitioners had a notice under Section 35(3) been

served.

8. According to Mr. Patil, the land is not covered with

stumps of trees of forest. The land is not pasture land, water logged

or non cultivable land lying within or linked to a forest as may be

declared to be forest by the State Government. The said land is not

having any forest produce whether standing, felled, found or

otherwise. According to Mr. Patil the adjoining land owners have

already obtained N.A. orders. Finally, he submitted that the

possession of the land is with the petitioners and the respondents

have neither sought nor taken possession of the land. On the

aforesaid grounds, it is submitted that the impugned mutation entry

is liable to be set aside.

9. On behalf of the respondents Mr. Manish Pabale, the

learned A.G.P relied upon the contents of the affidavit filed by

one Satyajeet Madanmohan Gujar on behalf of respondent nos.1 to

4. The affidavit deals extensively with provisions of the

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Maharashtra Private Forests (Acquisition) Act, 1975 and Indian

Forest Act, 1927. The learned A.G.P submitted that the land

involved is a forest and deemed to be a reserved forest under the

Private Forest Act. That by virtue of Section 3(1) and 3(3) of the

Indian Forest Act, 1927 the land is deemed to be private forest and

vests in the State Government. The panchnama shows that the

petitioners have illegally constructed a labour shed of 10 X 15 ft.

by encroaching upon the land and an old temple is also seen in

that area. The learned A.G.P further submitted that a notice under

Section 35(3) of the Indian Forest Act, 1927 was intended to take

some action and, therefore, service of notice was necessary as the

principles of natural justice were to be observed. However, as far

as the Private Forest Act is concerned, Section 35(3) is only

meant for identification of private forest and for such

identification, issuance of notice or publication of notification is

sufficient and 'service' of notice is not necessary. Reliance is also

placed on Section 2(c-i) and Sub-Sections (i) to (v) of the Private

Forest Act.

10. According to the learned A.G.P an appeal has been filed

under Section 6 of the Private Forest Act and that the appeal will

decide whether the land is under a private forest or not, and/or

vesting in the State Government or not. According to the

deponent of the affidavit, the decision of the Supreme Court in

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Godrej and Boyce (supra) is not applicable since the factual

position in the case at hand is different. The identification of

private forest is to be done under the Private Forest Act exclusively

by the forest department. Reliance is placed on the State

Government's letter No.PRF-1476/136990-F-6 dated 7th March,

1980 under which the following portion has been relied upon :

"It has been made clear by the Law and Judiciary Department that Section 2(f) of the Maharashtra Private Forest (Acquisition) Act, 1975 defines Private Forests, as Forests which is not the property of Government and includes lands, sites, mentioned in sub-clause (I) to (vi) thereof as also those on which tree growth is found though not abundant as natural forest, and that this would vest in Government on the appointed day i.e. 30th August, 1975 whether possession thereof has been taken after due identification of the lands under Section 5 of the Act, and if any objections etc. are received from the owners thereof; the Collector will have to adjudicate such cases under Section 6 of the Act. By operation of Section 3(3) of the Act, the rights of the previous owners have been extinguished as all the private forests lands have since 30th August, 1975 deemed to have been 'Reserved Forest'"

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Relying on the aforesaid               it is submitted that the Private Forest

Act which came into force on 30th August, 1975                  and that by virtue

of Section 5 any person                resisting   the authorities is liable to be

removed by force.

11. In the para wise response, it is denied that the petitioners

are the owners of the land and therefore the legal status of the land

is reserved forest and ownership thereof vests in the State

Government from the appointed day i.e. 30th August, 1975. Any

mutation entry contrary to such vesting is illegal and void. The

land was always a forest land and the petitioner would have been

aware of the mutation entry No.139. It is denied that the land is

under cultivation or under peaceful possession of the petitioner. It

is further contended that service of notice under Section 35(3) is

essential only under the Indian Forest Act, 1927. The petitioners

are not entitled to the benefit of the Apex Court judgment in

Godrej and Boyce (supra).

12. Having considered the rival submissions we find that it

is appropriate to reproduce the provisions of Section 35 of Indian

Forest Act 1927 as amended by the Indian Forest (Bombay

Amendment) Act, 1955.

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"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

wasteland--

a. the breaking up or clearing of land for cultivation;

b. the pasturing of cattle; or

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,

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construct at its own expense, in or upon any forest or

wasteland, such work as it thinks fit.

       (3)     "No       notification             shall    be    made        under

       subsection(1)

nor shall any work be begun under subsection (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."

13. In this respect, it is observed that in case of Godrej and

Boyce (supra), the Supreme Court has observed that service of

notice under Section 35 is mandatory. On considering the facts,

the Court held that the word "issue" contained in Section 35(3)

should be read in a wider perspective.

14.          Godrej and Boyce (supra)                     held   that the ownership of

the land     concerned, did not stand transferred to or vested in                            the





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State merely by          issuance of the notice and without service of the

said notice upon the land owner even if the notice was published

in the gazette. It was found that even the requirement as to

opportunity to the owner to object to transfer and vesting in the

State was not complied with. The Court considered in detail the

effect of the Maharashtra Private Forest (Acquisition) Act, 1975,

vesting of the private forest in the State Government and the fact

that the constitutional validity of the Private Forest Act was

challenged in J. C. Waghmare vs. State of Maharashtra2 and in

that case this Court held that the land owner who had been

issued notice under Section 35(3) of the Forest Act, who had not

been heard must have an opportunity to contend that the land is

not a forest within meaning of Section 2(c)(i) of the Private Forest

Act and that the land does not automatically vest in the State by

virtue of Section 3 of the Forest Act.

15. This position was not contested but was conceded by

the State of Maharashtra and this view accepted by the State

having attained finality. The Court also considered the effect of the

judgment of the Bombay High Court in Chintamani Gajanan Velkar

vs. State of Maharashtra3. The Court construed the word "notice

has been issued under Section (3) of Section 35 of the Forest Act in

a narrow sense holding that it did not require service of such

2 AIR 1978 Bom. 119

3 2000 (3) SCC 143.

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notice. The Court found that the view referred in Chintamani Velkar

(supra) was no longer a good law.

16. After having considered all these aspects the Supreme

Court opined that the word "issue" cannot be construed in its

narrow sense. In the affidavit in reply the stand taken by the

Government is that the judgment in Godrej and Boyce (supra) is

not applicable to the facts of this case. We find that the contentions

in the affidavit in reply and as canvassed by the learned A.G.P

are untenable. In the facts of the present case and the law as laid

down in Godrej and Boyce (supra) will squarely apply. An attempt

has been made in the affidavit in reply to show that the land is

not agricultural land but it is a private forest. Reliance is placed

on google images and photographs. Considering this objection, we

have our reservation as to the petitioners' contention that the land

is used for grazing etc. There is no evidence of such use.

However, we are not required to enter into the ascertainment of

location of the land or analyse whether the land was a forest land

or otherwise. We are concerned only with one question whether the

land is a private forest under the Private Forests Act. We are unable

to agree that the case in hand is different and that the petitioner

does not deserve any relief.

17. Having considered the various contentions of the State,

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in their affidavit in reply, in our view there is no reason why the

petition should not be allowed. Admittedly, notice under Section

35(3) of the Indian Forest Act has not been served upon the

petitioners. There is an express statement in the affidavit in reply

that a notice need not be served. In paragraph 19 it was

contended that a notice under Section 35(3) or notification under

Section 35(1) is "irrelevant in this case". We are unable to accept

this contention. In conclusion, we hold that once the State has

conceded that a notice under Section 33(3) has not been served

as contemplated in Godrej and Boyce (supra), the petition must

succeed. It has not been established that the lands, bearing Gat

No.7 is a private forest as contemplated under Section 2(f)(iii) of

Private Forest Act and the impugned mutation entry is required to

be set aside. However, we must hasten to add a rider which was

added in the case of Sinhagad Technical Education Society vs.

Deputy Conservator of Forest4 to which one of us (A.S. Oka, J.)

was a party. The Court considered the controversy and applied

the law as laid down in Godrej and Boyce (supra). It is however,

necessary to add that we have considered only the question

whether the land constitutes a private forest under the

Maharashtra Private Forest (Acquisition) Act, 1975. We have

not considered whether the land is a forest within the

meaning of Indian Forest Act, 1927 or Forest Conservation

Act, 1980 or any other statute and the adjudication in

4 2015 (6) ALL M.R. 371

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the instant case is confined to ascertaining the status of the land as

contemplated under Section 2(f)(iii) of the Private Forest Act and in

this respect, we find that the land is not a private forest.

18. In the circumstances we pass the following order :

(a) Mutation Entry No.139 dated 30th September, 2007 in respect

of land bearing Gat No.7 of village Pangloli, Taluka Maval, District

Pune is hereby quashed and set aside;

(b) Rule is made absolute and the petition is disposed of in the

aforesaid terms.

(c) No orders as to the costs.

     (A.K. MENON, J.)                                  (A.S. OKA, J.)