Bombay High Court
Vijay Yeshwant Abhyankar vs Ganesh @ Pramod Vinayak Joshi And ... on 13 January, 2022
Bench: R.D. Dhanuka, S. M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10475 OF 2018
WITH
CIVIL APPLICATION (ST.) No.6935 OF 2019
Ganesh @ Promod Vinayak Joshi & Ors. .. Petitioners/Applicants
Versus
State of Maharashtra & Ors. .. Respondents
ALONG WITH
INTERIM APPLICATION NO.2476 OF 2021
IN
WRIT PETITION NO.10475 OF 2018
Vijay Yeshwant Abhayankar .. Applicant
In the matter between
Ganesh @ Promod Vinayak Joshi & Ors. .. Petitioners
Versus
State of Maharashtra & Ors. .. Respondents
ALONG WITH
WRIT PETITION NO.10030 OF 2019
State of Maharashtra through
Dy.Conservator of Forest, Alibag .. Petitioner
Versus
Ganesh @ Promod Vinayak Joshi & Ors. .. Respondents
ALONG WITH
INTERIM APPLICATION NO.2480 OF 2021
IN
WRIT PETITION NO.10030 OF 2019
Vijay Yeshwant Abhayankar .. Applicant
In the matter between
State of Maharashtra through
Dy.Conservator of Forest, Alibag .. Petitioner
Versus
Ganesh @ Promod Vinayak Joshi & Ors. .. Respondents
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Mr.Vishal Kanade a/w Mr.Roopadaksha Basu and Ms.Harsha Asnani
i/by Law Point for the petitioners and applicants in CAWST/6935 of
2019.
Mr.Vishal Dushing for the applicant.
Mrs.Rupali M. Shinde, AGP for the respondent nos.1 to 3 in
WP/10475/2018 and for the petitioners in WP/10030/2019.
Mr.Advait Sethna a/w Mr.Anil D. Yadav for the respondent no.4 in WP/
10475/2018.
Mr.Mandar Limaye for the respondent no.5.
---
CORAM : R.D. DHANUKA AND
S.M. MODAK, JJ.
DATE : 13th January 2022
(Through Video Conferencing)
P.C.:-
. Heard Mr.Kanade, learned counsel for the petitioners,
learned AGP for the respondent nos.1 to 3, Mr.Sethna, learned counsel
for the respondent no.4 and Mr.Limaye for the respondent no.5.
2. The petitioners in Writ Petition No.10475 of 2018 have
challenged the Mutation Entry bearing No.158 in the records of rights
of the Village Karodi, Taluka Pen, District Raigad whereby the name of
State of Maharashtra was inserted in the 7/12 extract of subject property
bearing Survey Nos.2/1(1), 3/1, 41/0, 45(2), 47/1(2), 55/0, 57/0, 58/2,
60/0 and 61/0 cumulatively admeasuring 58.9384 Hectares situated at
Village Karodi, Taluka Pen, District Raigad.
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3. The petitioners have strongly placed reliance on the
judgment of the Hon'ble Supreme Court in case of Godrej Boyce and
Manufacturing Company Private Limited Vs. State of Maharashtra,
(2014) 3 SCC 430 in support of the contention that there is non-
compliance of Sections 35(1) and 35(3) of the Indian Forest Act, 1927
by the respondents. The Sub-Divisional Officer passed an order dated
28th May 2012 declaring that the petitioners are entitled for restoration
of the entire subject property to the extent of 58.9384 Hectares. The
State of Maharashtra however, challenged the said order by filing a Writ
Petition bearing No.10030 of 2019 before this Court. The said writ
petition is admitted by this Court and is pending.
4. It is the case of the petitioners that while impugning the said
order of the Sub-Divisional Officer, State Government has admitted that
the petitioners are entitled for restoration of 36 Hectares of the entire
subject property.
5. Mr.Kanade, learned counsel for the petitioners also invited
our attention to the order dated 30th July 2021 passed by the Division
Bench of this Court in these petitions recording a statement made by the
learned AGP, on instructions from Mr.Sanjay Kadam, Deputy
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Conservator of Forests, Alibaug stating that the Forest Department did not
have any objection if 36 out of 56 hectares of the subject property was
restored back to the petitioners, after carrying out the necessary
demarcation. This Court accordingly granted time to the parties to
prepare consent minutes setting out the procedure that would be followed
for restoring 36 Hectares of land to the petitioners.
6. Pursuant to the order dated 30 th July 2021 passed by this
Court, Mr.Kanade, learned counsel for the petitioners in Writ Petition
No.10475 of 2018 tendered draft minutes. A copy of the draft minutes
are also served upon the respondents through their respective advocates.
7. Learned counsel for the respondents however, opposes the
passing of any order in terms of draft minutes of the order. It is however,
submitted that if this Court passes an order after hearing both the parties,
they have no objection to comply with the order that would be passed.
8. Learned AGP for the respondent nos.1 to 3 does not dispute
that the State Government had made a statement before this Court, on
instructions from Deputy Conservator of Forests, Alibaug stating that
the Forest Department has no objection if 36 out of 56 hectares of the
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subject property would be restored back to the Petitioners, after carrying
out the necessary demarcation.
9. Mr.Sethna, learned counsel for the respondent no.4-Union of
India invited our attention to the affidavit-in-reply filed by the Chandulal
Tashildar on behalf of the respondent no.4 affirmed on 8th December 2021
and would submit that the Hon'ble Supreme Court vide its order dated
13th November 2000 in the matter of 'Centre for Environmental Law,
WWF-I Vs. Union of India & Ors.' in Writ Petition (Civil) No.337 of
1995 directed that pending further orders, no de-reservation of
forests/National Parks/Sanctuaries shall be effected. He submits that
once a land is notified under the Indian Forest Act, 1927 as RF/PF or
private forest prior approval of the Hon'ble Supreme Court of India for
de-notification/de-reservation of such land as forest land would be
mandatory besides obtaining prior approval of the Central Government
under the Forest (Conservation) Act, 1980 (for short " the said Forest
Act"). The Central Government under the said Forest Act is mandated to
deal with the 'diversion' of the forest land for non-forestry purposes,
whereas the de-reservation or de-notification of a forest land would
require the leave of the Hon'ble Supreme Court.
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10. It is submitted by the learned counsel that Union of India is
not agreeable with an agreement between the petitioners and the State
Government as recorded in the minutes of order. If this minutes are
accepted, act of the respondent no.5 would constitute to de-reservation
of the forest land without leave of the Hon'ble Supreme Court.
11. Learned counsel for the respondent no.4, however, does not
dispute that if the petitioner applies for permission of the Central
Government under the provisions of the said Forest Act, the Central
Government would consider such proposal in accordance with law. He
submits that the State Government has not moved any proposal till date,
for granting application for seeking such permission for 36 Hectares of
land by way of de-reservation or de-notification of forest land to the
Central Government.
12. Mr.Sethna, learned counsel for the respondent no.4 placed
reliance on the judgment dated 4th May 2021 delivered by a Division
Bench of this Court in case of Percy Jamshed Driver Vs. State of
Maharashtra in Writ Petition (St.) No.4416 of 2021 in support of the
submission that approval of the Central Government would be necessary
in view of the provisions of Section 2 of the said Forest Act.
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13. Mr.Kanade, learned counsel for the petitioners, in rejoinder,
submits that in view of the statement already made by the State
Government before this Court that the petitioners are at least entitled for
restoration of 36 Hectares of the larger property described in the petition
pursuant to the order dated 28 th May 2012 passed under Section 22A of
the Maharashtra Private Forest (Acquisition) Act, 1975 and in view of
stand of the respondent nos.1 and 2 (the petitioners in Writ Petition
No.10030 of 2019) and more particularly at page 15 thereto, the
Collector shall earmark and demarcate 35 Hectares from the larger
property and intimate the petitioner regarding the details of the survey
number and area of the said land. He submits that the Collector shall
consider that the land from the larger property has been acquired for
the purpose of development of Balganga Dam Project which is already
utilised for non-forest purpose.
14. It is submitted by the learned counsel that the respondent
no.5 be directed to forward records and files of the proceedings No.22-
A/Appeal No.1 of 2012 under Section 22A to the respondent no.4
within three weeks from today with a direction to the respondent no.4 to
consider the said application of Chief Conservator of Forest, Alibaug
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and to dispose of the same within the time, as may be prescribed by the
Court.
15. There is no dispute that the State Government had made a
statement before this Court recording their no objection to restore the
36 Hectares out of the larger property in favour of the petitioner. The
objection of the Union of India however, that the permission of the
Central Government would be required under the provisions of the said
Forest Act.
16. We are of the view that in view of there being no dispute
raised by the State Government, an appropriate direction in respect of at
least 35 Hectares out of the larger property be issued to the parties at this
stage.
17. We accordingly pass the following order :-
(i) The Collector shall earmark 35 Hectares from the larger property
which is the subject matter of this petition and shall carry out necessary
demarcation in the event of the Central Government granting permission
under Section 22A of the Forest Act in favour of the petitioner.
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(ii) The respondent no.5 shall forward records and files of the
proceedings No.22-A/Appeal No.1 of 2012 under Section 22A to the
respondent no.4 for granting approval within three weeks from today.
(iii) The respondent no.4 shall consider the said application of
the Chief Conservator of Forest, Alibaug and shall pass appropriate
order within eight weeks from the date of receipt of the said application.
The order that would be passed by the respondent no.4 shall be
communicated to the petitioner as well as the respondent no.5.
(iv) If the respondent no.4 grants approval in the application of
the Chief Conservator of Forest, Alibaug under Section 22A of the
Forest Act in respect of 35 Hectares, the Collector shall demarcate the
said 35 Hectares and shall convey the decision to the petitioner within
eight weeks from the date of communication of the order of the
respondent no.4 and shall communicate the order to the petitioner as
well as to the respondent no4 and the respondent no.5 respectively along
with plan showing the demarcation within one week from the date of
such order and demarcation.
(v) In case the respondent no.4 passes any adverse order against
the petitioner, the petitioner would be at liberty to seek amendment in
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the application after filing appropriate application to challenge such
adverse order.
(vi) If the respondent no.4 requires any further clarification or
assistance from the petitioner or from the respondent no.5, the same shall
be provided expeditiously.
18. It is made clear that whether the petitioner is required to
obtain any permission from the Hon'ble Supreme Court in the
proceedings referred by the respondent no.4 in the affidavit-in-reply or
not, the said issue also to be considered in the order proposed to be
passed by the respondent no.4. It is made clear that we have not passed
any order in respect of the balance land of the petitioner which is the
subject matter of this writ petition.
19. Place the matters on board for 'Directions' on 4 th April
2022.
S.M. MODAK, J. R.D. DHANUKA, J.
