Bombay High Court
Rajmachi Rural Aid And ... vs The State Of Maharashtra And Ors on 29 April, 2022
Bench: R.D. Dhanuka, S. M. Modak
WP 5586 of 2021 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5586 OF 2021
Rajmachi Rural Aid and Development
Programme ] ...Petitioner
(Trust Registered under the ]
Bombay Public Trust Act, 1950) ]
Through its Hon. Secretary ]
Shri Amogh Moreshwar Ghaisas ]
R/at: A-27 Bhaveshwar Dham, ]
85, Dr. Rafi Ahmed Kidwai Road, ]
Wadala (West), Mumbai - 400 031. ]
vs.
1. The State of Maharashtra ]
Through the Secretary, ]
Revenue and Forest Department, ]
Room No. 456/461 Annex, ]
Hutatma Rajguru Chowk, ]
Madam Cama Road, Mantralaya, ]
Mumbai 400 032. ]
2. The Additional Principal Chief Conservator ]
of Forest (Conservation) ]
3rd Floor, Van Bhavan, ]
Ramgiri Road, Civil Lines, ]
Nagpur - 440 001. ]
3. The Chief Conservator of Forest (Territorial) ]
Pune Division, ]
Van Bhavan, Bhamburda Van Vihar, ]
Gokhle Nagar, Pune - 411 016. ]
4. The District Collector, Pune ]
New Collector Office Building, ]
Station Road, ]
Opposite Sasoon Hospital, ]
Pune, Maharashtra - 411 001. ]
5. Tehsildar, ]
Digitally signed
SEEMA by SEEMA
KSHITIJ YELKAR
KSHITIJ
YELKAR
Date:
2022.04.30
15:52:26 +0530
Seema 1/29
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Taluka Maval, ]
Tehsildar Office Building, ]
Old Mumbai - Pune Highway, ]
Near Vadgaon - Maval Railway Station, ]
Maval, Pune - 412 106. ]
6. Talathi (Khandala) ]
Market Road, Near Jain Temple ]
Khandala - 410 301. ] ...Respondents
*****
Mr. Sangramsingh R. Bhosale, Ms. Aarti D. Bhonsale, Ms. Samridhi S.
Jain, Mr. Abhishek Salian, Ms. Pushkara A. Bhonsle and Ms. Aarti D.
Gaikwad i/by Vidhi Partners - Advocate for the Petitioner
Mr. Vasant S. Gokhale - 'B' Panel - Advocate for the Respondent-State
*****
CORAM : R. D. DHANUKA AND
S. M. MODAK, JJ.
RESERVED ON : 01st MARCH, 2022
PRONOUNCED ON :
JUDGMENT (PER S. M. MODAK) :-
1. This Court had come across various petitions involving a grievance
that land in question is not a private forest under the provisions of
Maharashtra Private Forest (Acquisition) Act, 1975 hereinafter referred to
as 1975 Act. It is predominantly for the reason that there are defects in
the notice and notification issued under Section 35 of 1975 Act. In this
Petition also we are supposed to deal with the grievance about :-
a) Defect in the notice issued under Section 35 (3) of 1975 Act.
b) Defect in the notification issued under Section 35(1) of 1975 Act.
c) Whether these defects are sufficient so as not to vest land in the
State Government and so also there is an issue of general apathy of
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Department of Forest in not implementing the provisions of 1975
Act and also an issue of general apathy of Revenue Department in
granting the permission mechanically.
2. On this background, we have heard Mr. Sangramsingh R. Bhosale,
Advocate for the Petitioner and Mr. Vasant S. Gokhale, AGP for the
Respondent-State.
3. The relevant facts for deciding the controversy are narrated below.
The original owner of the land in question is one Bhiwa Shiwa Waghmare.
He has entered into an agreement for sale on 15/05/1984 and executed a
registered sale deed with the Petitioner on 06/01/1986 The Petitioner is
claiming ownership on the basis of said sale deed. His main thrust of
argument is that he has purchased the land in question after following the
procedure and after taking due care. According to him, the contention of
Respondents about vesting of the land is without basis and there are so
many lacunaes and defects in the notice and notification. The details are
as follows:
Description of land Gat No. 16 (Old Admeasuring 8 h. Situated at Village
survery No. 3, 3R Udhewadi (Rajmachi),
Hissa No. 2 Tal. Mawal, District Pune
Land purchased 4 H. 20.02 R - --
Date of show cause notice 16th August 1956 Issued to Shiwa -
under Section 35 (3) of Bhiwa Waghmare
1975 Act.
Date of Notification under Issued on Published in the Out of 48 lands described
Section 35(1) of 1975 Act 23/01/1959 gazettee on in the schedule, the land
shown in the name of
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Shiwa Bhiwa Dhakol
Bhiwa Shiwa Waghmare From Gangadhar Registered Sale -
purchased the land old Narayan deed dated
survey no. 3, Hissa No. 2 Deshpande 02/12/1948
The Petitioner entered On 15/05/1984 For Rs. 8,600/- Page No 86
into an agreement for sale
with Bhiwa Shiwa
Waghmare
Permission to sale above Under section 36A Page 91 -
land to the Petitioner (1) of MLR Code.
Registered sale deed in 06/01/1986 Survey No. 3 Hissa Page 93
between the Bhiwa Shiwa No. 2, 4 H 20 R
Waghmare and the
Petitioner
4. The Respondents contend that when 1975 Act came into force on
30/08/1975, the land in question was a forest land and as such it has
vested in the Government as per the provision of Section 3 of 1975 Act.
So according to the Respondents, the sale deed relied upon by the
Petitioner is not valid sale deed in the eyes of law. Whereas according to
the Petitioner proper procedure as contemplated under Section 35 of
Indian Forest Act was not followed and as such the law as interpreted in
case of Godrej & Boyce Manufacturing Co. Ltd. and Anr. Vs. State of
Maharashtra and Ors.1 will be applicable. The sum and substance of the
grievances are as follows:-
a) Notice dated 16/08/1956 was issued to "Shiwa Bhiwa
Waghmare" and not to owner in his right name as "Bhiwa
Shiwa Waghmare".
b) Even there are two defects in the final notification and the
1 (2014) 3 SCC 430
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same mistake in the name of the owner has continued
alongwith one more mistake of describing the surname as
Dhakol (and not Waghmare).
c) In view of the defects in the notice, there is no question of
serving the notice and for want of service of notice the entire
further proceedings is illegal.
5. Apart from this the Petitioner relied upon negligent and callous
attitude of Department of forest in implementing the provisions of
1975 Act. The Petitioner relied upon following circumstances :-
a) mutation entry number 225, dated 14th April 2004. As
per that entry remark is made in other rights of 7/12
extract of the land in question that the land is reserved as
per 1975 Act.
b) The panchnama dated 27th July 2018 and receipt for
possession. It is dated 27th July 2018. These documents
mentioned that the department of forest has taken
possession of the land in question on the basis of
notifications issued as per Section 35 of the Forest Act
1927.
6. Apart from these documents, in order to show his possession over
the suit land and activities carried out by the Petitioner on the land in
question and in order to show the proper procedure has been followed,
the Petitioners relied upon followings documents :-
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(a) Copy of permission dated 5th October 1985, given by
the Additional collector Pune under the provisions of
Section 36 (A) of Maharashtra Land Revenue Code. As
the original owner Bhiwa Shiwa Waghmare was a
member of Adiwasi Community said permission was
given.
(b) The mutation entry number 579 thereby taking note of
the sale deed.
(c) Photographs showing certain structures in demolished
state.
(d) A copy of a notice dated 31 st January 1997 issued by the
Sarpanch of village Rajmachi, Udaywadi thereby asking
Mukund Gondhlekar to stop the construction work as it
is carried out without permission of the Grampanchayat
and Collector Pune.
(e) The copies of Assessment extracts for various periods
ranging from 2006-07 up to the year 2019-20 thereby
recording the Petitioner as owner in respect of the
house structures.
(f) Copies of the house tax receipts for various periods.
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7. In order to buttress his contention about the possession of the
Petitioner over the land in question, the learned Advocate for the
Petitioner also relied upon a Panchnama carried out on 4 th June 2020. By
which the damage caused to the shades due to natural storm has been
carried out. Apart from this, there are also correspondence filed by the
Petitioner to suggest that the department of forest has taken action
against the Petitioner for carrying out construction on the forest. One
notice was issued on 6th April 2021, thereby calling the explanation of
the Petitioner. The said notice is also challenged in this Petition. There are
also various correspondence made by the Petitioner addressed to various
authorities including Principal Secretary Forest dated 8 th June 2021, there
are also inter Departmental correspondence in between officers of the
forest department. On their perusal it reveals that the Section officer of
department of the Revenue and Forest has called for the opinion of
additional Conservator of forest. In turn the opinion of Chief Conservator
has also been called for.
8. By way of reply learned Additional Government Pleader Shri
Gokhale submitted that it is true that the Forest Department has not
taken any action on the basis of Notification issued under Section 35 (1)
of the Forest Act. But he invited our attention to the various orders passed
by this Court in a PIL filed by Bombay Environmental Group. On there
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perusal, it is clear that the department of Forest has not taken any action
including making necessary entries on the revenue record of the land
which is deemed to be a Forest under 1975 Act. It is also true that this
Court is required to intervene particularly when the department of Forest
has not taken any action so as to implement 1975 Act.
Law on the point of service of notice
9. Respondents heavily relied upon the provisions of Section 3 of 1975
Act. As per the said provisions, all private forest in the State shall stand
acquired and vests in the said Government on the appointed day i.e.
30/08/1975. Prior to that it must be a private forest as defined in Section
2 (f) of the said Act. There are in all six categories in which it is said that
a forest land is a private forest. For deciding controversy before us Clause
Nos. (ii) and Clause No. (iii) of Section 2(f) are relevant. For ready
reference, it is reproduced below :
"2. (f) "private forest" means any forest which is not the
property to Government and includes, -
(ii) any forest in respect of which any notification issued
under sub-section (1) of section 35 of the Forest Act,
is in force immediately before the appointed day;
(iii) any land in respect of which a notice has been issued
under sub-section (3) of section 35 of the Forest Act,
but excluding an area not exceeding two hectares in
extent as the Collector may specify in this behalf."
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10. So the forest in respect of which there is a notification issued under
Section 35(1) of the Indian Forest Act and which is in force immediately
before the appointed day will be a private forest. So also any land in
respect of which notice has been issued under Section 35 (3) of the Forest
Act (with certain exemption) will be a private forest. Both these
contingencies are mutually exclusive and need not be satisfied at the same
time. It will be relevant to consider the provisions of Forest Act, 1927.
Provisions of Forest Act, 1927
11. Section 35 is included in Chapter V relating to "the control over
forest and lands not being the property of the Government". Section 35
(1) empowers the State Government to regulate or prohibit certain
activities in any forest or waste land. The word "Waste land" was deleted
by provincial Government. There is rider to Section 35(1) of 1975 Act.
There is pre-condition of issuing notice under Section 35(3) prior to
issuing Notification under Section 35(1). The purpose of issuing notice is
also prescribed. It is for the purpose of giving an opportunity to hear an
objection. Section 35(3) uses the word "until after the issuance of a notice
to the owner of such forest or land". It no where uses the phrase "notice
must be served". This is the controversy decided by the Hon'ble Supreme
Court in case of Godrej & Boyce.
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Facts of Godrej and Boyce case
12. The facts and the controversy raised in that case needs to be
understood clearly. The Godrej company was a permanent lessee of the
land situated in Vikhroli. It was described as Waste land. The purpose of
lease was to cultivate the said land. The controversy pertains to 133 acres
and 38 gunthas. Godrej was issued with a notice under Section 35(3) of
the Forest Act and it was published in the gazette on 06/09/1956. Godrej
came with a grievance about non-service of the said notice and getting a
knowledge about it subsequently. This notice was challenged before this
Court. The grievances put forth were as follows :-
a) Said notice was not served on Godrej.
b) The provision of 1975 Act are not applicable to the said land.
c) There was consent decree in between them and the Government
& Government has agreed that the land was appropriated or
brought under cultivation by Godrej before, 14/08/1951.
d) This decree was drawn in a suit filed by Godrej thereby
challenging the decision of the Government to bring back the
land from Godrej for the reason that it was not cultivated prior to
14/08/1951.
e) This action was taken by the Government in view of enactment of
Salesutte Estates (Land Revenue exemption abolition) Act 1951.
13. This Court rejected the contention of Godrej. The Hon'ble Supreme
Court decided the appeal and after considering the provisions of law, the
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views expressed in earlier judgment has accepted the contention of
Godrej.
14. While deciding the Godrej & Boyce case, the Hon'ble Supreme
Court has considered various aspects. Various provisions of Maharashtra
Private Forest Act and views expressed by the Hon'ble Supreme Court in
earlier judgments were considered. In Godrej & Boyce case one of the fact
which Hon'ble Supreme Court considered was that after issuing a notice
under Section 35 (3) of 1975 Act, for 18 years no decision was taken on
the said notice [in other words, it has not resulted into issuance of
notification under Section 35 (1)]. The Supreme Court emphasized on
inaction of the Government to take decision on said notice. Furthermore,
there is a factual observation that the land in question cannot be
considered as a forest or a waste land. The Hon'ble Supreme Court
interpreted the meaning of the word 'issued' appearing in Section 35(3) of
1975 Act as 'served'. It means to say that merely because the word served
is not used in Section 35(3), it cannot be said that the purpose will be
achieved only by issuing a notice. For that purpose, the Hon'ble Supreme
Court also considered other sub-sections of Section 35 as per the Bombay
amendment.
15. The Hon'ble Supreme Court was pleased to differ with the view
taken by Hon'ble Supreme Court in the case of ' Chintamani'. In that case,
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it was observed that when notice is issued, there is a compliance of
Section 35(3) of the said Act. The Hon'ble Supreme Court also considered
the background in which the Chintamani has been decided. In that case
the Revenue authorities have already observed that land is a forest. On
this background, the Hon'ble Supreme Court in case of Godrej & Boyce
has observed that there was no need for the Apex Court to go into the
question of the meaning of the word 'issued'. Furthermore, the Hon'ble
Supreme Court observed that the amended provisions of Section 35
effected by State of Bombay were not brought to the notice of the Hon'ble
Supreme Court in case of Chintamani. In nutshell, we have to consider
that not only issuance of notice is sufficient but service of notice is also a
very important.
Other Judgments
16. These observations were considered by this Court in various
judgments. They were quoted by both the sides before us. It will be
material to consider those observations. They are as follows:
Judgments relied upon by the Petitioner are as follows.:-
1) Shree Maruti Sansthan Trust & Ors. Vs. The State of
Maharashtra & Anr.2
2) M/s Global Estate Developers Vs. State of Maharashtra
& Ors.3
2 2015 SCC Online Bom 7074
3 2017 SCC Online Bom 8345
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3) Shri Shashikant Kantilal Pokhama Vs. The State of
Maharashtra & Ors.4
4) Ozone Land Agro Pvt. Ltd. Vs. State of Maharashtra &
Ors.5
5) Nana Govind Gavate (since deceased) through Legal
heirs A to J & Ors. Vs. State of Maharashtra, through its
Principal Secretary, Revenue and Forest Department
and Ors.6
6) Lalit A. Sangtani through his Power of Attorney Rajiv L.
Sangtani Vs. State of Maharashtr7
17. We have perused all these judgments very minutely. On reading
them, we may find that in almost all the Judgments, the issue was about
validity of the notice issued under Section 35(3) of 1975 Act. There was
grievance raised that notice under Section 35(3) of the said Act has not
been served and the question cropped up was whether it can be said that
land in question is deemed to have vested in the State Government after
enactment of 1975 Act. In all these judgments, this Court has considered
the observations made by the Hon'ble Supreme Court in case of Godrej &
Boyce. On this background, it has been held that when notice under
Section 35(3) of 1975 Act was not served, there cannot be vesting of the
land in State Government.
4 2017 SCC Online Bom 1221
5 2016 (1) MahLJ 483
6 2016 SCC Online Bom 340
7 2016 SCC Online Bom 248
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18. It is important to note that in the judgments relied upon by the
Petitioner delivered by Division Bench of this Court has considered the
observations in case of Godrej and Boyce, still in some of those judgments,
it has been observed that :-
"They have not dealt with the issue about the applicability of
Maharashtra Private Forest Act or Indian Forest Act or Forest
Conservation Act."
19. These judgments are in case of Shree Maruti Sansthan Trust and
Ors. Vs. the State of Maharashtra and Anr., M/s Global Estate Developers
Vs. State of Maharashtra and Anr. and Shri Sashikant Kantilal Pokhama
Vs. The State of Maharashtra & Ors.
20. On the other hand learned AGP Shri Gokhale, relied upon the
observations of this Court in case of Devkumar Gopaldas Aggarwal and
Ors. Vs. State of Maharashtra in WP No. 4814 of 2016 and other
connected Writ Petitions. In case of Devkumar case also this Court has
considered the observations of the Hon'ble Supreme Court in case of
Godrej & Boyce. On facts, it has been held that the observations in case of
Godrej & Boyce are not applicable in the Devkumar Aggarwal case. It is
submitted before us on behalf of the Petitioners that the judgment in case
of Devkumar Aggarwal, is challenged before the Hon'ble Supreme Court
and the matter is pending. He brought to our notice an Order passed by
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the Hon'ble Supreme Court in Special Leave Petition Civil diary No. S-
12533 of 2019. In that matter the Hon'ble Supreme Court has stayed the
effect of the judgment given by this court in case of Devkumar Aggarwal.
Forest Conservation Act 1980
21. In order to buttress his submission about the applicability of the
Forest Conservation Act the learned advocate for the Petitioner relied
upon following judgments:-
(i) In Re: Construction of Park at Noida near Okhla Bird
Sanctuary, Anand Arya and Anr. Vs. Union of India and
Ors.8
(ii) Rakesh Saini Vs. Ministray of Environment Forest and
Climate Change and Ors.9
(iii) B. S. Sandhu Vs. Government of India and Ors.10
(iv) Chandra Prakash Budakoti Vs. Union of India and Ors.11
22. We have read those judgments. It is true that Hon'ble Supreme
Court and National green tribunal has dealt with the issue when it can be
said that it is forest and when it can be said that the provisions of Forest
Conservation Act 1980 will be applicable. In case of Anand Arya Case,
there was an issue about the relevancy of document. On one hand the
department of forest relied upon the satellite images to show that it's a
forest. On the other hand, the Petitioner relied upon the Government
8 (2011) 1 SCC 744
9 2020 SCC Online NGT 1478
10 (2014) 12 SCC 172
11 (2019) 10 SCC 154
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records. It has been observed that the records of the Government have to
be given due credence since they pertain to time when project was not
even in any one's imagination and its proponents were nowhere on the
scene.
23. Whereas in case of Rakesh Saini, National Green Tribunal also dealt
with a similar issue whether land was an agricultural land or whether it
was a forest land. The purpose for drafting Forest Conservation Act 1980
was also reiterated. It was for the purpose of furthering deforestation
which ultimately results into ecological imbalance. As far the provisions of
Section 2 of Forest Conservation Act, the State Government is restrained
from doing certain acts unless approval of the Central Government is
obtained.
24. Whereas in case of B. S. Sandhu, Hon'ble High court has given a
finding that the land is a forest land. It was set aside by Hon'ble Supreme
Court and the matter is remanded back to the High Court. Hon'ble
Supreme Court emphasized on the aspect of the effect of treating the land
as a forest land on the legal rights of several villages, agriculturist,
farmers, shop owners and inhabitants. There were certain inconsistent
documents. The Forest department contend that the land in question was
under their control whereas revenue record suggest that it is an
agricultural land. The Expert committee report suggested that the lands
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are deleted from the list. On this background, the matter was remanded
back to a High Court for fresh consideration.
25. Whereas in case of Chandra Prakash Budakoti Hon'ble Supreme
Court has opined which are the relevant factors for considering the land
as a forest land or not. The National Green Tribunal has directed the
Regional Office of Ministry of Environment and Forest at Dehradun to visit
the site and give a report, whether it is a forest land or not. On those
lands, the constructions of Villas was under way. One direction pertain to
certain survey numbers was confirmed because the Ministry of Forest
opined that it was Private forest.
26. Whereas learned AGP replied upon judgment in case of State of
Maharashtra Vs. Rajaram Gawas in Writ Petition No. 3943 of 1991 , in the
said case, the issue involved before Division Bench of this Court was about
the legality of the Order passed by the Sub- Divisional officer revenue
thereby returning the land for the reason that it was not a private land.
This Court considered the effect of passing the Forest Conservation Act.
This Court also considered the observations of the Hon'ble Supreme Court
in case of T. N. Godavarman Thirumulpad Vs. Union of India in WP No.
202 of 1995. After taking overview of the situation, it has been observed
that it was not permissible to return the land under Section 22 (A) of the
1975 Act in view of the provision of Section 3 of the Forest Conservation
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Act, unless the approval of the Central Government was obtained. In that
case this Court considered the observations of Hon'ble Supreme Court in
case of Chintamani. It is on the point of what is the meaning of the phrase
issuance of a notice used in Section 35 (3) of the Forest Act. It is also true
that these observations are set aside by Hon'ble Supreme Court in case of
Godrej & Boyce. Certainly the observations in case of Rajaram Gawas on
the point of issuance of notice does not hold good. However the other
observations on the point of application of Forest Conservation Act still
can be considered. It has further been submitted that this judgment was
challenged before Hon'ble Supreme Court and Apex Court has refused to
interfere in those observations.
27. In Rajaram Gawas's case this Court also considered the meaning
of different clauses given in Section 2(f) of 1975 Act. This Court also
considered the two parts of Section 2(f). The first part indicates what
Private forest means. Whereas second part indicates what is included
within the meaning of the word private forest. This is discussed in para
no. 8 of the said judgment. There is also elaboration about Clause number
2 (f) (iii) of 1975 Act. It only says about issuance of a notice under
Section 35(3) of Indian Forests Act. If such notice is issued and when
1975 Act came into force, it may happen that the procedure about hearing
of objection has not taken place. Because as per Section 24 of 1975 Act,
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Section 35 of Indian Forest Act as (amended by provincial Government)
stand repealed. So there may be a case wherein a notice is issued under
Section 35(3) of the Indian Forest Act, but the further procedure about
hearing of objection has not taken place and in the meantime, 1975 Act
came into force and Section 35, as amended by State of Bombay stand
repealed. It may also happen that only notice under Section 35 (3) of the
Forest Act was issued, but further procedure about hearing of objection
and issuance of a notification under Section 35(1) of the Indian Forest Act
has not taken place. This has been discussed in the said paragraph. It is
also true that in that case it was admitted fact that notice under Section
35 (3) of the Indian Forest Act was not served. On this background it has
been held that it is not proper for the revenue authorities to restore the
land.
28. It is true that now in view of the pronouncement in case of Godrej
& Boyce, the interpretation of Section 35(3) about the meaning of the
word issue has changed. As such the observations in the said judgment of
Prabhakar Gawas will not be applicable now. Still the other observations
about interpretation of Section 2 (f) of 1975 Act and so far as application
of Forest Conservation Act will still hold good. It will be material to see to
what extent they are applicable.
Conclusion
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29. It is important to note that after considering the observations in
case of Godrej and Boyce and the judgments given by Division Bench of
this Court, we may find that there is a material difference in the provision
of Section 35 (1) on one hand and the provisions of Section 35 (3) on the
other hand of 1975 Act.
30. As per Section 35 (3) issuance and the receipt of a notice is
important and such land will become a private forest on the appointed
day. Whereas when Notification is issued under Section 35(1) and if such
Notification is in force on the appointed day, such land will become a
private forest land and will vest in the Government. We may find that
legislature while drafting Section 2 (f) of the 1975 Act has taken
precaution to include various contingencies wherein, it can be said that
the land/forest vests in the Government.
31. It is important to note that in case of Godrej and Boyce, the Hon'ble
Supreme Court interpreted the provisions of Section 35 (3) of Indian
Forest Act. After reading the judgment, we do not find that the issue of
validity of Notification under Section 35 (1) of the Indian Forest Act was
involved before the Hon'ble Supreme Court. It was neither the case of
Forest Department nor the case of Godrej and Boyce that the Notification
under Section 35 (1) of the said Act was issued. So Hon'ble Supreme
Court had no occasion to deal with the effect of Notification under Section
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35 (1) of the Indian Forest Act and on the claim that such land vest in the
Government. So also A perusal of the judgments relied upon by the
Petitioner delivered by a Division Bench of this Court idicates that in those
judgments also the issue of Notification under Section 35 (1) of the Indian
Forest Act had not arisen. At this juncture, we are not making an
observation in so far as the case of Devkumar Aggarwal is concerned for
the simple reason that those observations have been stayed by Hon'ble
Supreme Court.
32. So in this case, the facts are different. There is not only a notice
issued under section 35 (3) of the Indian Forest Act, but the stage has
gone ahead, and even the respondents claim that Notification under
Section 35 (1) of the Indian Forest Act has been issued. In our view in
case of Godrej and Boyce such contingencies had not arisen before
Hon'ble Supreme Court. None of the parties have relied upon any
judgment dealing with a case wherein notification under Section 35 (1) of
Indian Forest Act is issued, and it was in force when 1975 Act came into
force.
Defects in Notice and Notification
33. For the above discussion, we will have to decide this case on the
basis of facts of this case. Now we will deal with the claim of the
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Petitioner that there are defects in the notice and defects in the
Notification. Can it be said that now Petitioner being the purchaser of the
land from the original owner is justified in raising those grievance about
defects in the notice? Whether such objections can be raised after a long
period? Whether such defects result into quashing the notification in
question?
34. The Petitioner claims that there are defects in the Notice and
Notification as reproduced above. They are issued to one Shiva Bhiwa
Waghmare, whereas on record the name of the owner is Bhiwa Shiwa
Waghmare. Even the Respondents does not dispute that Notice and
Notification mentions the name of the owner in the respect of land in
question as Shiwa Bhiwa Waghmare. There is a consensus amongst both
the parties. During oral arguments learned AGP submitted that this is a
typographical error. It is important to note that Petitioner has impleaded
Bhiwa Shiwa Waghmare as a Respondent. He submitted that even though
he was served, he has chosen not to appear. Now the question before us is
whether we should decide the controversial issue in a writ jurisdiction or
whether to relegate that issue to be decided by the concern authorities.
The Respondents do admit that there is a defect in the notice and in the
notification so to say that the proper name of the owner is not mentioned.
It ought to have been "Bhiwa Shiwa Waghmare" whereas it is mentioned
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as "Shiwa Bhiwa Waghmare". At one point of time on the basis of
available documents, we could have certainly decided this issue. However,
before us both the parties have only argued about defects in the notice
and notification and in view of that, the land does not vest in the
Government as per Section 3 of 1975 Act. However, it is also important to
note that apart from the issue of vesting, it is also important to decide the
issue as to whether the land in question is a forest land or not. The
circumstances compel us to make certain observations on that issue.
35. It is true that Dividend Bench of this Court in the judgments
referred earlier have not expressed any view so far as the applicability of
Forest Conservation Act and whether the land in question is a forest land
or not. But what we feel is that we should not hesitate in passing certain
observation on that issue. The reason is if that issue is kept unanswered,
there will be a certain complications in future. The reason is that the
approach of the department of forest may be casual and even they may be
negligent, but the situation does not prevent us in making certain
comment. Everyone is worried about reduction in the forest cover. We are
also aware about the global warming. Hence we are inclined to make
certain comment.
36. It is true that even though 1975 Act was passed, department of
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forest has not taken any steps to make necessary entries on 7X12 extracts
of the land in question. The result was that the land continued to be in the
name of the owners. At the same time, we also feel that the officers of the
department of Revenue have also not taken the precaution while granting
the permission to Bhiwa Shiwa Waghmare in selling that land. The
learned AGP pointed out to us certain correspondence made by the Forest
department to the Revenue department. These documents include
(a) a copy of a register maintained in respect of Notices issued
under Section 35(3) of the Forest Act on 16th August 1956,
(b) the Google images of the said land,
(c) correspondence made by Divisional Forest officer Pune
Division to Collector on 30th August 1976, thereby informing
him to de-mark the land which is acquired as per 1975 Act
(in which the village Udhaywadi is mentioned and survey No.
3 is also mentioned)
(d) one interdepartmental correspondence of the Forest
department asking the concerned officers to collect
information in respect of a land which is acquired as per the
Notification under Section 35 of the Forest Act. It is dated 16 th
October 1995.
37. In our view there are disputed questions of fact. It is a settled law
that in the Writ Jurisdiction, disputed questions of fact cannot be decided.
The provisions of Section 6 of 1975 Act are material.
38. From all these documents referred herein above at different stages
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by us, it discloses that at some point of time the department of Forest has
taken steps in implementing Maharashtra Forest Act. However it was not
taken to its logical conclusion. At the same time, the Collector office
before granting permission for sale of the land to the Petitioner, seems not
to have seen the record. It is pertinent to note that the various villages
from Mawal Taluka were declared as a reserved forest in view of the
provisions of 1975 Act. So the concerned Revenue authorities must be
aware that the land in question is a forest land. It is important to note that
whenever any permission is granted by Revenue Officers whether it be
under Section 36(A) of Maharashtra Land Revenue Code or under other
Sections, inquiry is conducted at the ground level. If the concerned
Revenue Officers would have pointed out that this land is a Forest land,
probably the permission under Section 36(A) would not have been
granted. Be that as it may, the situation persuaded the Petitioner to
purchase this land.
39. It is important to note that in case of Godavarnam case the issue
arisen before Hon'ble Supreme Court was which land could be considered
as a forest land, whether the dictionary meaning is to be given or not.
There were certain directions issued to all the State Governments. The
State Governments were directed to constitute a Committee consisting of
experts. The Committee was further directed to survey the land in their
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respective States and to give opinion which of those lands are the forest
lands or not. This must have been done in our state. However, none of the
parties have pointed out to us whether the Expert Committee for our State
have opined about the land in question. We are taking cognizance of this
direction for the simple reason that in a Petition before us not only the
issue about vesting of land is relevant but also the issue whether land in
question is a forest land or not. As none of the parties have argued that
issue before us, it does not detain us from dealing that issue.
40. We deem it proper to relegate that issue to be decided as per
Section 6 of Maharashtra Private Forest Act. As per Section 6, the
Collector is required to decide two questions:-
"First, Whether a land in question is a Private forest or
not, and
Second, whether it vest in the Government."
41. At the same time, the observations of Hon'ble Supreme Court in the
few of the judgments relied upon by Petitioner on the point of
interpretation of Forest Conservation Act were also important. Certain
guidelines have been given by the Hon'ble Supreme Court how to deal
with the said issue. We feel that the concerned Collector (who is the
Competent Authroity under Section 6 of 1975 Act) may also decide the
issue whether land in question is a forest land or not. If it is a Forest land,
the question will arise whether the sale deed of the Petitioner in question
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can withstand the test of law.
42. Even though belatedly the Forest Department has prepared a
panchnama in the year 2018 thereby taking possession of the land in
question, at this juncture also, we find that there is a lapse on the part of
department of Forest. Because in the year 2004, they made entries on
7/12 extract of the land in question about the private forest however they
took possession in the year 2018. If such an attitude continues it is difficult
to opine what will happen to our existing forest. If the Collector comes to
a conclusion that the land in question is a forest land, then the Petitioner's
claim as to ownership on the basis of sale deed will not survive.
43. There is an objection raised on behalf of the Government about
maintainability of Petition. It is true that the Original owner has not raised
any issue at any time. He has not appeared before this Court. When the
Collector decides the issue under Section 6 of the Said Act, he will also
bear in mind that the original land owner has not raised this issue till
date. He may also verify whether at any point of time this issue was raised
by the original owner. The Respondents are at liberty to produce the
materials before the Collector to the effect that the Petitioner has not
raised any issue or has raised it but that has been decided against him.
44. It is true that the Petitioner has purchased the land by executing a
registered sale deed. It is also true that land in question stands in their
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name on 7X12 extract. It is also true that they have filed various
documents showing their possession and carrying out certain activities. It
is also true that they have planted various trees with the help of social
Forest department. It is also true that they have received a
recommendation from the Deputy Conservation of Forest for collecting
samples from State of Karnataka. The Petitioner can very well rely upon
all these events. It is true that the department of forest has issued a notice
dated 06/04/2021 thereby asking the Petitioner to stop the work of
construction. When we have relegated the issue to the Collector till the
issue is decided that Petitioner can not carry out any work on the land in
question. There is also panchnama to suggest that department of forest
has taken the possession of the land in question. For this discussion, we
are inclined to relegate the issue to the Collector under Section 6 of 1975
Act. It is true that in Whirlpool Corporation the Hon'ble Supreme Court
has dealt with some of the contingencies wherein the Writ Petition under
Article 226 of the Constitution of India is maintainable. There cannot be
dispute about the said proposition. We are not inclined to entertain this
Petition as disputed questions of fact are involved. We pass the following
order :-
ORDER
(i) Writ Petition is partly allowed.
(ii) The Collector Pune is directed to decide following issues under
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Section 6 of Maharashtra Private Forest Act as to:-
(a) Whether there exist of forest on the land in question
and
(b) Whether land in question has vested in the
Government on the appointed day.
(iii) Both the parties are directed to appear before the Collector
on 18th May 2022 at 11 a.m..
(iv) Both the parties are at liberty to file pleading and to file
documents on the record.
(v) The Collector is directed to decide the issue within the
period of six months.
45. In the view of above observations, Writ Petition stands disposed of.
No Order as to costs.
[S. M. MODAK, J.] [R. D. DHANUKA, J.]
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