Bombay High Court
Smt.Janabai S/O Vithoba ... vs The State Of Mah. Thr Its Secretary ... on 5 May, 2017
Bench: Z.A. Haq
Judgment 1 wp3423.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3423 OF 2008
1. Smt. Janabai S/o. Vithoba Sonule
(Since Deceased) through her
Legal Representatives :
i) Devidas Vithoba Sonule,
ii) Wachhalabai Narayan Wasake,
iii) Meerabai Hari Mahadore,
iv) Kausalyabai Nanaji Gawture,
v) Punyawan Kawdu Sonule,
vi) Latabai Kawdu Sonule,
vii) Sayatrabai Kawdu Sonule,
viii) Pushpabai Kawdu Sonule,
All legal representatives (i) to
(viii) all are Major and occ.:
Agriculturists,
R/o. Chicholi, Tahsil : Dhanora,
District : Gadchiroli.
2. Smt. Trivenibai Shivram Chaudhari,
Aged : Major, R/o. Chicholi,
Tahsil : Dhanora, District : Gadchiroli.
3. Shrawan S/o. Odgan Kolhe,
Aged about : 50 years,
R/o. Survodaya Ward, Gadchiroli,
General Power of Attorney Holder
on behalf of Petitioner Nos.1(i) to
(viii) and petitioner No.2. ....PETITIONERS.
// VERSUS //
1. The State of Maharashtra, through
its Secretary, Revenue and Forest
Department, Mantralaya, Mumbai-32.
2. The Collector, Gadchiroli,
having its office at Gadchiroli.
3. Deputy Collector/ Resident
Deputy Collector, Gadchiroli.
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Judgment 2 wp3423.08.odt
4. Deputy Conservator of Forest,
Gadchiroli Division, Gadchiroli.
5. Tree Officer/ Range Forest Officer,
Dhanora, District : Gadchiroli.
6. Manoj S/o. Anandrao Khobragade,
Aged about 35 years, Forest
Surveyor, Gadchiroli,
C/o. Deputy Conservator of Forest,
Gadchiroli.
.... RESPONDENTS
.
___________________________________________________________________
None for the Petitioners.
Shri S.P. Deshpande, Addl. G.P. for Respondents.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MAY 05, 2017.
ORAL JUDGMENT :
1. None appeared for the petitioners on 6th January, 2017. On
13th April, 2017 none appeared for the petitioners. The learned A.G.P. was
heard and the matter was kept as part-heard. On 20th April, 2017 Shri S.P.
Palshikar, Advocate sought adjournment. On 25th April, 2017 again
adjournment was sought on behalf of the petitioners.
Today, none appears for the petitioners. Heard Shri S.P.
Deshpande, learned Additional Government Pleader for the respondents.
2. The predecessor of the petitioners had filed application seeking
permission to fell trees standing in old Khasra No.236 (New Survey
Judgment 3 wp3423.08.odt
No.198/2) and Old Khasra No.94/1 (new Survey No.56/2) of mouza :
Chicholi. This application was rejected by the learned Collector by order
passed on 22nd November, 2007 and he found that as per the report given
by the Deputy Conservator of Forests Division, Gadchiroli the fields in
question fall within the area of protected forest.
The original petitioners sought review of this order but their
prayer for review is dismissed by the order passed on 10th June, 2008 which
is challenged in this petition.
3. After hearing the learned Additional Government Pleader, I find
that the dispute is whether the fields in question fall in the area of protected
forest. This Court had passed an order on 18th June, 2009 by which the State
was directed to place on record the measurement map and the affidavit of
the Measurer who was in the office at that time and the affidavit of Shri
Khobragade (respondent No.6) at whose instance the measurement was
undertaken. Pursuant to the above order, an affidavit sworn by the
respondent No.6 on 11th August, 2009 is filed. In this affidavit it is stated
that Survey No.198/2 (Old Survey No. 236) was notified as protected forest
and it is accordingly published in the official gazette dated 8th August, 1957.
The leaned Additional Government Pleader has submitted that
the petitioners have not challenged inclusion of Survey No. 198/2 (Old
Judgment 4 wp3423.08.odt
Survey No.236) as protected forest and therefore, there is no substance in the
petition and it be dismissed with costs.
4. The affidavit sworn by the petitioner No.3 on 18th August, 2009
is filed disputing the claim of the respondents. The petitioners have also
made certain allegations against the respondent No.6.
5. I find that there are disputed questions of fact and it will not be
possible for this Court to examine them in the extraordinary jurisdiction.
However, considering the facts of the case, specially that the petitioners are
from remote place and considering the nature of allegations levelled by them
against the respondent No.6, in my view, the interests of justice would be
sub-served by passing the following order :
i) The order passed by learned Collector, Gadchiroli on 10th June,
2008 and on 22nd November, 2007 are set aside.
ii) The matter is remitted to the Collector, Gadchiroli for deciding
the application filed by the petitioners afresh.
Needless to say that the application should be decided by the
learned Collector after granting an opportunity to the
petitioners to put-forth their case.
iii) The learned Collector shall call fresh report from the Deputy
Conservator of Forests, Gadchiroli and then pass orders on the
Judgment 5 wp3423.08.odt
application filed by the petitioners.
iv) The petitioners shall appear before the learned Collector,
Gadchiroli on 14th July, 2017 at 11.00 a.m. and abide by
further instructions in the matter.
v) Shri S.P. Palshikar, Advocate, who represents the petitioners,
shall send copy of this judgment and inform the petitioners that
they are required to attend the office of the learned Collector,
Gadchiroli, as above.
vi) Shri S.P. Deshpande, learned Additional Government Pleader
shall intimate about this judgment to Shri S.P. Palshikar,
Advocate.
Rule is made absolute in the above terms. In the circumstances,
the parties to bear their own costs.
JUDGE
RRaut..
