[Cites 19, Cited by 0]
Bombay High Court
Shrikrishna Ramchandra Dharap And Ors. vs State Of Maharashtra And Ors. on 23 March, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-AS:14275-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9685 OF 2010
1. Shri Shrikrishna Ramchandra
Dharap, Adult Occupation Agriculturist,
residing at Vardoli, Taluka Panvel,
District Raigad. .. Petitioners
2. Shri Anand Ramchandra Dharap
3. Shri Prakash Vasudeo Datar
4. Smt. Vinita Vijay Vartak, occupation
of all nos.2 to 5, agriculturist, all
residing at Vardoli, Panvel, Dist Raigad.
Versus
1. State of Maharashtra through
Secretary, Revenue and Forest Dept,
Mantralaya, Mumbai 32.
2. The Collector, Alibag, Dist. Raigad
3. Up-Zilla Adhikari, Private Forest,
Alibag, Districti Raigad.
.. Respondents
4. The Chief Conservator of Forest,
Thane Range, District Thane.
5. The Conservator of Forest, Thane
Range. District Thane.
6. Union of India, Ayakar Bhavan, New
Marine Lines, Mumbai 400020.
...
Mr.Vineet Naik, Sr. Advocate with Sukand Kulkarni and Miheer
Jaykar i/b S.V. Sonawane and Sangharshika Sonawane for the
petitioners.
Ms.S.D. Vyas, Addl. Government Pleader with Mr.Karan Thorat
'B' Panel Counsel for respondent nos.1 to 5.
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CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ
DATED : 23rd MARCH, 2026
JUDGMENT:
- (Per Bharati Dangre, J)
1. The petition filed by the petitioners having been admitted
on 8/7/2022 is taken up for hearing on completion of the
pleadings.
We have heard learned Senior advocate, Mr. Vineet Naik
with Sukand Kulkarni for the petitioners. The State Authorities
are represented by Additional Government Pleader Miss Shruti
Vyas along with Karan Thorat 'B' Panel Counsel. Since the
petitioners did not press the challenge to the validity of the 40 th
Amendment Act 1976 placing Maharashtra Private Forest
Acquisition Act, 1975 under the Ninth Schedule of the
Constitution, as sought in prayer clause (b), the Writ Petition is
heard without the presence of the counsel representing the
Union of India, or the Attorney General.
2. The petitioners are the owners of various pieces and
parcels of agricultural land, bearing Survey No. 2B(3), and
2C(1) of village Machi, Prabal, Taluka Panvel, District, Raigad,
admeasuring 56H and 19.5R. The petitioners plead that they
are agriculturists, and the lands belonging to them are
agricultural lands, and are so recorded in the Revenue Records,
and the title of the petitioners over the subject lands is not in
dispute.
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The respondent no.1 to the petition is the State of
Maharashtra represented through Ministry of Revenue and
Forest, whereas these respondent nos.2 to 5 are the
functionaries of the State Government discharging their duties
under the provisions of Maharashtra Private Forest
(Acquisition) Act 1975 (hereinafter referred to as 'Forest Act
1975'. Respondent no. 6 is the Union of India, who was
impleaded, since the challenge was raised in the petition to the
validity of the 40th Constitutional Amendment, but the learned
Senior Counsel make a statement that he is not pressing the
said challenge, and he restrict the challenge in the petition to
the legality and validity of notification dated 30/10/1999
issued by the Forest Department and to the corrigendum issued
on 2/7/2001.
In short, the petition has raised challenge to the
impugned notification issued by the State of Maharashtra under
the purported exercise of powers under section 21(5) of the Act
of 1975, by which the State has declared the lands of the
petitioners as 'Private Forest' from the date of its notification,
but by issuing a corrigendum rectified the error which had
occurred in describing one of the survey numbers in the
impugned declaration.
3. The petitioners have pleaded that they are the owners of
the lands of the aforesaid description and are in actual
possession of the same, which position continue as on date. It is
their pleaded case that perusal of the extract of land record i.e.
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7/12 extract and form VI maintained under the provisions of
the Maharashtra Land Revenue Code, 1966, would reflect the
crops taken in the said land.
On 22/10/1997, the State Government published a
notification in official gazette purportedly in terms of Section
21(1) of the Act of 1975, that their lands are proposed to be
declared as 'Private Forest' and called upon the interested
persons to file their objections. In furtherance of the said
notification, the petitioners also received a notice in the nature
of show cause notice dated 23/3/1998 with reference to the
proposal to declare the lands of the petitioners as 'private
forest'.
Responding to the aforesaid show cause, the petitioners
submitted their objection in form of an affidavit on 17/4/1998,
addressing the same to the District Collector, Alibag, specifically
stating that the lands in question are agricultural lands, and
they are under cultivation by the petitioners. It was specifically
pointed out that the vegetation present on the subject land was
creation of the petitioners by artificial means and/or by human
agency, and they have planted and nurtured forest species on
the site. It was also specifically stated that the petitioners are
taking crops of Ragi, Vari, etc. and they have planted more than
4000 trees, including teak and other forest species, and
approximately 1000 fruit bearing trees like mango, jambul,
karvand, etc. Categorically stating that the agricultural land
was cultivated by 'rab' method, prevalent in Konkan region of
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Maharashtra, which require burning of shrubs, grass and
bushes after they are spread on cultivable land to improve the
texture of the land, the petitioners opposed the proposed
declaration. It was stated that the petitioners had enhanced
their produce yield by planting trees which would assist such
growth.
4. In short, it was the specific stand adopted by the
petitioners/noticee categorically stating that by using
manpower and human efforts, they had planted various trees,
and the original nature of the land was agricultural, and
because of planting of trees, the land is under
plantation/vegetation, but in no case, it has changed its nature
from agricultural land into forest.
In the affidavit before the Collector, the petitioner no.1,
categorically deposed thus :-
"7 We have already done plantations for various fruit and forest
trees, which has not only improved the vegetation of the area but has
created employment to the legal Adivasi population. Their livelihood
close to their place to stay has stopped their activity of illegal falling
of trees in forest area to sell fuel wood in the nearing area to earn
daily bread.
8 The typical situation of our lands has a vast potenetial for
plantation of rare medicinal forest trees and plants which commands
global export market and availability of the said medicinal plants in
naturally grown forest of Sahyadri has became almost nil. We are
already in the process test plantation of some of the medical and spice
plants in our lands which have shown encouraging result.
9 It is further submitted that the object for which the land in
question is being used is for afformation human plantation or through
artificial means this being the factual position in view of the
provisions of Section 21A the proposed modification cannot be made
applicable to our lands and on this grounds alone the Show Cause
Notice issued by you is required to be quashed and set aside."
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It was therefore prayed that in view of Section 21A of the
Forest Act 1975, the proposed action of declaration of the land
as 'Private Forest' through the show cause notice, shall be
dropped. It was also specifically pointed out that Section 21A
of the Act of 1975 do not apply to any non-forest land on which
afforestation is made by any artificial means or human agency
by planting forest trees species.
5. On 20/4/1998, the Deputy Collector, Alibag visited the
site and prepared a panchnama.
The panchnama is placed on record as a part of the
petition, and it record the factual position present on site, i.e.
land at survey 2(B)(3) and 2C(1). It refers to the presence of
various trees with its numbers as below :-
(1) Mangoes - 70 to 80 (small and big)
(2) Umbar - 50 to 60 trees.
(3) Karanj - 30 to 40 trees.
(4) Jambool -- 50 to 60 trees.
(5) Fanas - 10 to 15 trees.
(6) Khair - 5 to 10.
(7) Chivan 5 to 7 trees.
(8) Cashew - 50 to 60 trees.
6. The panchanama also referred to the cultivation in form
of Rice, Nachni, Vari, and also made reference to the hutments
of tribal people, and permanent structure of petitioner no.1 Shri
Dharap, along with the presence of a well.
After the visit of the Deputy Collector, Alibag, the
petitioner filed an additional affidavit on 21/4/1998 before the
District Collector, offering further details of the afforestation
and/or plantation that was undertaken, and standing on the
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subject land since 1984. In the said affidavit, it is categorically
deposed that the plants which were planted on the site were
purchased in the year 1985-1986 and that since various
villagers had caused destruction of the planted trees, the
petitioner no.1 engaged himself in new plantation on the land.
He also offered the bill-cum-receipts of the plants
purchased by him from various nurseries giving details of the
species of the plants purchased along with the date of purchase.
The relevant photographs of the site, of the saplings and
documents showing labour charges incurred for planting the
trees also formed part of the additional statement.
The petitioner thus requested that the proposed action
u/s. 21 of the Maharashtra Private Forest Act, 1975, be
dropped.
It is pertinent to note that in the meantime, the
notification published on 22/10/1997 lapsed in the wake of
Section 21(8) of the Act of 1975 as on 21/10/1998. The
petitioner received no communication for considerable period
of time, and they were under a bonafide impression that the
proposed action purportedly initiated in the show cause notice,
has been dropped by the authorities. The petitioners therefore
continued to be in possession of the land and also continued
with the cultivation.
7. However, after a gap of about 12 years from the date of
the last communication, the Officers from the office of the
District Collector, Alibag restrained the petitioners from
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cultivation of the land on the ground that the same was
declared as 'Private Forest'.
When the petitioners sought information under the Right
to Information Act, 2005, they gained knowledge that their
lands were declared as 'Private Forest' under Section 21(5) of
the Act of 1975 by a notification published on 13/10/1999,
with reference to the publication of the notification, indicating
the intention of the State Government to declare the land as
'forest land', and referring to the conduct of the inquiry by the
Collector, Raigad. It is also mentioned that on taking into
consideration the Reports, Objections, Proceedings, and the
Opinion of the Collector, the State Government deemed it
appropriate to declare the tract of land, not being the property
of the Government to be a 'Private Forest' as it contained trees,
shrubs, and pastures.
The Schedule to the said notification referred to land in
Survey 28(3) and land in Survey No. 2C(i) with it's boundaries
being set out therein. This was, however, followed by a
corrigendum, clarifying that Survey No.28(3) in Schedule shall
be read as '2B(3)'.
The petitioners were taken by surprise, as though the
proceedings under Section 21 were initiated in the year 1998,
the petitioners did not hear anything from the respondents after
April 1998 and suddenly they were made aware of their lands
having been declared as 'Private Forest' by the impugned
notification, thereby preventing the petitioners from continuing
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cultivation and they made necessary inquiries and obtained
factual details before they approached the Court by filing the
present Writ Petition.
It is specifically urged by the petitioners that though their
land has been declared as 'Private Forest', no steps are taken by
the respondents for computation of compensation as
contemplated under the Act of 1975 and the petitioners
continue to be in possession of the land even as on date.
8. On collecting the necessary information which is compiled
and included as part of the petition, the petitioners have placed
reliance upon the same. In the series of transactions and
communications, there is a reference to one communication
addressed by the Deputy Collector, Raigad, Alibag to the
Secretary, Revenue and Forest Department, informing that it
was not possible to determine whether the trees standing on
the subject land were not naturally grown or there is
involvement of any human agency.
With reference to the factual inspection of the land
carried out on 20/4/1998, and the report of the same having
been forwarded, it was stated that the land was marked with
presence of small and big trees of various kinds including
mangoes, umber, karanj, jambul, etc are local species.
Similarly, there were shrubs of karvand, nigh, ghaneri and the
land was also found to be under cultivation of Vari and Nagli.
With reference to the inspection report, it is stated that
Mr. Dharap had furnished an affidavit along with which he had
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produced documents containing receipts of purchase of plants
from various nurseries along with the dates. He had also
produced job receipts of expenditure to the tune of
Rs.3,66,756/- towards labour charges, plantation, irrigation
during 1991 to 1997.
9. In the wake of the aforesaid, the Deputy Collector
reported thus :-
"From actual observation of the site and inspection of trees in
the place at village Machi Prabal Tal. Panvel G. No. 2(B)(3) and
2(C)(1), it will not be proper to express opinion whether
Mr.Dharap has by artificial means has planted trees by manual
labour. Because no expert in that field is available in this office.
However, it is my opinion that is is necessary to take expert
opinion as to whether trees which exists in Sr.No.2(B)(3) and
Sr.No.2(C)(1) at village Machi Prabal Tal. Panvel arre planted
by Mr.Dharap by artificial means and made plantation through
manual labour or grown naturally."
Thus, by the aforesaid communication, the Deputy
Collector desired to have an expert opinion on the issue as to
whether trees standing on Survey No.2B(3) and Survey No.
2C(1) at village Machi are planted through artificial means.
10. This was followed by a note prepared by the Revenue and
Forest Department, with reference to the communication from
the Deputy Collector (Private Forest) Raigad, Alibag.
The note, with reference to the site report and the
notification dated 22/10/1997 published in the gazette under
Section 21(1), declaring total area of 56.195 as 'Private Forest'
situated in village Machi, Prabal, it was indicated that show
cause notices were issued to the concerned as to why the said
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land shall not be declared as 'Private Forest'. The notification
was published in Government Gazette on 22/10/1997, and it
was necessary to take a decision within one year i.e. prior to
21/10/1998.
The report make a reference to notice issued to
Shrikrishna Ramchandra Dharap and others, who submitted an
affidavit disclosing their stand, in which it was declared that he
had planted 4000 forest trees and 1000 fruit trees and was
taking crop of Vari and Nachni in some part of the land, when
factual inspection of the land was carried out. There is also a
reference of construction of Mr. Dharap on the said land.
The report has a reference of 106 receipts produced by
Mr. Dharap towards cost of purchase of the plants/saplings and
the amount paid as labour charges as well as the expenditure
incurred for eight years was also referred to. It is in this
background when the report of the Deputy Collector
contemplated an expert opinion, the report noted thus :-
"But from the report of Collector, private Forest Raigad fact is not
becoming clear whether notification be made as private forest and
whether it is suitable for making applicable provisions of
Maharashtra Private Forest Act, 1975 at Page 25 to 1247 along
with Report receipts of purchase of plants of labour charged are
attached. From which attempt is appears to made that to prove
that there was artificial plantation. So copy of this report may be
forwarded to Conservator of Forest, Thane in order to whether
land in question is suitable declaring as private forest vide
Notification u/s.21(5) of Maharashtra Private Forest (Acquisition)
Act, 1975."
11. In furtherance of the aforesaid Note, the Conservator of
Forest, Thane, addressed a communication to the Secretary,
(Forest), Revenue and Forest Department, on 13/1/1998,
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where we find a contradiction as it was indicated that on
personal inspection, greenery was found at the site but as per
the contention of Mr. Dharap that he had nourished 4000 trees
by artificial plantation, it was found without any substance.
Though it was admitted that some trees were planted
artificially and 400 trees were alive, it was noted that there is
natural greenery of species like Lokhandi, Umbar, Gle,
Ranmedhi, Burkuda, Bhosor, Chandora, etc. and there is no
scope for extra plantation and also no need of it, and therefore,
it was suggested that in respect of area of 56.35 Hectares from
Survey No. 2B(3) and Survey No. 2C(1) in consequence of the
notification published under section 21(1), further action under
section 21(5) be taken.
12. The next stage in the process came when the Law and
Judiciary Department, prepared its report on 29/4/1999, and
formed an opinion that the Department will have to call for
expert opinion in respect of the tract of land for the purposes of
Section 21, otherwise the proposed notification would be
vulnerable if challenged.
The Law and Judiciary Department, had drawn the
aforesaid inference, with reference to the report of the
Collector, Raigad, indicating that the owner of the land had
planted forest species by artificial means or by human agency
and has carried out the afforestation. However, it is recorded
that Collector of Raigad is not an expert in forest science and
therefore, he had suggested that the opinion of Forest Officer or
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an Expert be called for, but in the very same report, the
Collector recommended that the tract of land which contained
shrubs, is adjacent to the forest and therefore, it may be
declared to be a 'Private Forest'.
In the aforesaid background, Law and Judiciary
Department recorded thus :-
"On close scrutiny of this report, it appears that the report of
the Collector is self-contradictory. It appears from the note at
page 59/cs in view of the report of the Collector, the
Department has called for the opinion of the Conservator of
Forest, Thane on 30/6/1998 and 30.9.1998 which is yet to be
received by the State Government. Therefore, taking into
consideration the definition of the term 'forest' in clause (c-1)
of section 2 of the said Act, the Government has decided to
declare the said land to be a private forest under sub-section
(5). However, it is pointed out that under sub-section clause
(III) of clause (c-i), the pasture land, water-logged or cultivable
or non-cultivable laying within or linked to forest may be first
declared to be a forest by the State Government. In this case,
the said track of land, although it is linked to a forest is not
declared to be a forest by the State Government under sub-
clause (iii) of clause (c-i) of section 2 of the said Act and
therefore, unless the said land is declared as a forest under sub-
clause (III) of clause (c-i) it would not be legally feasible to
declare the said track of land to be a private forest under sub-
section (5) of Section 21 of the said Act. Under such
circumstances, the Department will have to call for the expert
opinion in respect of the said track of land for the purposes of
section 21; otherwise the proposed notification would be
vulnerable if challenged."
The aforesaid information in form of communications is
procured by the petitioner no.1 by preferring an application
under Right to Information Act and the documents were
supplied to him which form part of the petition.
13. The learned Senior Counsel Mr.Naik would submit that in
the teeth of the aforesaid correspondence which the petitioners
have secured under the Right to Information Act, the
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petitioners who were unaware, as after response being filed to
the show cause notice received by them, the petitioners did not
hear anything and were under the bonafide impression that the
proceedings were dropped. However, after more than a decade,
when they were prevented from cultivating their agricultural
land on the pretext that it is already declared as 'private forest'
and it vests in the State, they gained knowledge of the
impugned notification of 13/10/1999, purportedly issued
under Section 21(5) of the Act of 1975. It is in 2010, the
petitioners obtained the relevant information and according to
Mr. Naik, it becomes clear that the notification is issued long
back, in the teeth of the aforesaid correspondence, which
clearly reveal that the nature of the alleged forest was not yet
determined conclusively, and it was deemed necessary to have
an expert opinion, to assess the stand of the noticee, that it was
not a natural forest, but a man made cultivation.
The learned senior counsel would invite our attention to
Section 21A of the Act which is inserted by Maharashtra
Amendment V of 1998, clarifying that nothing contained in
Section 21, which is the power of the State Government of
declaration of certain lands as 'private forest' shall apply to any
non-forest land, not being the property of Government on
which by artificial means or by human agency, afforestation is
made by planting forest trees species.
According to Mr. Naik, the said provision exist in form of
saving the afforested lands, and in absence of the exercise
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initiated in the petitioner's case being concluded, that it was not
a non-forest land, it was not open for the State Government to
issue a declaration, on a half hearted exercise being carried out.
It is his specific contention that by filing affidavits before the
Collector, on more than one occasion, the petitioners have
attempted to demonstrate that all the plants which had taken
the shape of the trees planted on the subject land and standing
on the site were purchased from various nurseries, and they
were planted and nurtured for considerable length of time by
use of labour and expenditure being incurred towards their
survival. According to Mr.Naik, no finality has therefore been
arrived at by the Forest Department to pronounce upon the
defence of the petitioners/noticees to the show cause notice
that their land is liable to be declared as 'Private Forest' in
exercise of the power under section 21 of the Maharashtra
Private Forest (Acquisition) Act, 1975.
14. The claim raised by the petitioners is contested by the
respondent and the learned Government Advocate has relied
upon the affidavit in reply filed by the Assistant Conservator of
Forest on 14/8/2013.
We have perused the affidavit, which at the outset has
raised a preliminary objection about the delay in institution of
the Writ Petition, as it is contended that the petition is belatedly
filed after a gap of 11 years from the date of issuance of
notification dated 13/10/1999 and it should not be entertained
as it suffer from delay and laches. Apart from this, it is also
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contended that if the petitioners want to get their land declared
as 'non-forest', then the remedy lies somewhere else.
The reply affidavit, though admit that by communication
dated 22/5/1998, the Deputy Collector, Alibag, had expressed
an opinion that it would not be proper on his part to express
any definite opinion, in the factual background and an expert
opinion would be required; the affidavit proceed to state that
the expert opinion was called from the Conservator of Thane,
which was submitted on 13/1/1999 in which it was suggested
that action should be taken in furtherance of Section 21(5) of
the Act of 1975. The affidavit further proceed to state that the
report from the Law and Judiciary Department dated
29/4/1999 shall not be relied upon, as the expert opinion of
the Conservator of Forest, Thane dated 13/1/1999 was not
placed before the Law and Judiciary Department, and
therefore, it was justified in ignoring the aspect that an expert
opinion was already obtained.
15. A rejoinder affidavit came to be filed by the petitioner on
17/9/2013, where it is categorically stated that notification
under section 35(1) was also not published. It is further stated
that the lands are not in possession of the Forest Department
and therefore, they do not fall within the category of 'Reserved
Forest' or 'Protected Forest'.
As far as the contention of the delay in filing the petition,
it is sought to be justified by submitting that the petitioners
have filed the petition, when they became aware of the issuance
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of the impugned notification and corrigendum and obtained
necessary documents under the RTI Act and therefore, there is
no delay. As far as the possession is concerned, the petitioners
have stated in the rejoinder affidavit that the revenue record
reflected the name of the petitioners, but this position was
altered by mutation entry no.71 dated 2/2/2008, which came
to the knowledge of the petitioners after they were obstructed
in continuing the cultivation on the subject land in January
2010 and this constrained them to seek necessary information
under the Right to Information Act and it lead to the filing of
the writ petition.
16. Another important facet which is highlighted in the
rejoinder affidavit, is the submission of affidavit/report of the
Collector, Raigad on 30/3/2007, in furtherance of the
directions issued by Hon'ble Supreme Court in T.N.
Godavarman Thirumulkpad Vs. Union of India and ors 1, where
the subject land in possession of the petitioners is not identified
as 'Forest'. It is therefore, contended by the petitioners that the
impugned action is based on complete misreading of the order
of the High Court dated 10/10/2011 in Writ Petition No.
2980/2001 i.e. in case of Bombay Environment Action Group
Vs. State of Maharashtra (WP No.2980/2001) where the
directions were issued on 10/11/2011 to take mutation entries
in respect of 'Forest' which was declared as 'Private Forest' in
terms of Act of 1975.
1 (1997) 2 SCC 267
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17. In light of the rival contentions placed before us, we have
applied our mind to the facts involved.
The Maharashtra Private Forest (Acquisition) Act 1975, is
enacted by the State legislature in the backdrop of the fact that
the forest land in the State was found to be inadequate and the
private forest in the State in general is highly degraded and in
over-exploited state and was adversely affecting agriculture and
agricultural population. The enactment therefore, provided
acquisition of private forest in the State generally for
conserving the material resources and protecting it from
destruction or exploitation by its owner and for promoting
systematic and scientific development and management of such
forests for the purpose of attaining and maintaining ecological
balance in the public interest and also for improving the socio-
economic conditions of rural population, particularly the Tribals
and other backward communities who live in forest areas.
18. The Act defined 'forest' in Section 2(c-i) as below :-
"Forest" means a tract of land covered with trees (whether
standing, felled, found or otherwise), shrubs, bushes, or woody
vegetation, whether of natural growth or planted by human
agency and existing or being maintained with or without
human effort, or such tract of land on which such growth is
likely to have an effect on the supply of timber, fuel, forest,
produce, or grazing facilities, or on climate, stream flow,
protection of land from erosion, or other such matters and
includes --
(i) land covered with stamps of trees of forest ;
(ii) land which is part of a forest or lies within it or was part of a
forest or was lying within a forest on the 30th day of August
1975;
(iii) such pasture land, water-logged or cultivable or non-
cultivable land, lying within or linked to forest, as may be
declared to be forest by the State Government ;
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(iv) forest land held or let for purpose of agriculture or for any
purposes ancillary thereto ;
(v) all the forest produce therein, whether standing, felled, found
or otherwise ;]
19. Sub-Section (1) of Section 3 of the Act of 1975 provide
for vesting of "Private Forests" in the State Government as it
prescribe that all private forest in the State shall stand acquired
and vests, free from all encumbrances and shall be deemed to
be the property of the State Government and all rights, title,
and interest of owner or any person other than the Government
subsisting in any such forest are deemed to have been
extinguished.
However, sub-section (2) of Section 3 provide that
nothing contained in sub-section (1) of Section 3 shall apply to
so much extent of the land comprised in a private forest, as is
held by an occupant or tenant and is lawfully under cultivation
on the appointed day and is not in excess of the ceiling area
provided by Section 5 of the Maharashtra Agricultural Land
(Ceiling or Holdings) Act 1961. Sub-section (3) of Section 3
further provided that all private forests vested in the State
Government by virtue of sub-section (1) of Section 3 shall be
deemed to be 'Reserved Forest' within the meaning of the Forest
Act.
The date of coming into operation for the said Act of 1975
was declared as 30th August 1975.
20. Section 7 of the Statute provide for payment of amount to
the owner of private forest as sub-section (1) prescribe that
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every owner of a private forest which vests in the State
Government under the provisions of the Act, shall be paid by
the State Government, an amount which is equal to twenty
times the assessment per hectare of land comprised in such
forest, to be compensated in accordance with section 23 and 24
of the Land Acquisition Act, 1894.
Section 8 allowed the owner of the private forest to make
an application within six months from the appointed date to the
Collector for determining the amount payable to him and the
Collector shall, after making such formal enquiry, in the manner
provided in the Code, shall make an award determining the
amount payable to the owner.
21. Section 21 of the Act of 1975 provide for declaration of
certain lands as private forests and it contemplate the
procedure to be adopted before such a declaration is made, in
public interest and for furtherance of the object of the Act.
The said provision prescribe a procedure to be followed
where the Collector or any other Officer authorised on behalf of
the State Government shall issue a notice to the owner that
such tract of land belonging to him, is to be declared as 'forest'
and asked him to show cause within the stipulated period.
After hearing the objections, if any, of the owner and
other person and considering the evidence that may be
produced in support of the same, the Collector or the
authorized officer, shall submit its report to the State
Government along with the objections, proceeding and his
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opinion whether the tract of land should or should not be
declared as 'private forest'.
Upon consideration of the objections and report and
opinion of the Collector, the State Government shall take a final
decision and if it decide to declare such tract of land as private
forest, it shall publish its decision by notification in the Official
Gazette and upon such notification being published, it shall be
deemed to be a 'Private Forest' and all the provisions of the Act
of 1975 shall apply thereto.
On the publication of such notification, it shall not be
lawful for the owner of such tract of land or any other person to
do therein, except with the previous permission in writing of
the Divisional Forest Officer, the activity clearly prohibited till
the date of publication of the notification. If any person
contravene the provisions of sub-section (8) of Section 21, he
shall on conviction, be punished with imprisonment for a term
which may extend to six months or with fine or both.
20. One more relevant provision in the scheme of the
enactment is Section 21A which reads thus:-
"21A. Saving of certain afforested lands.-- Nothing in
section 21 shall apply to any non-forest land, not being the
property of Government, on which by artificial means or by
human agency afforestation is made by planting forest tree
species"
22. The facts placed before us and the counter submissions
advanced carefully require appreciation in light of the statutory
scheme and in specific, Section 21 and Section 21-A, and this is
what we have precisely done.
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As far as the objection as regards the petition being filed
with delay and therefore, barred by limitation, we find that
though the show cause notice was issued to the petitioners on
23/3/1998, and the petitioners submitted their objection on
17/4/1998, to the District Collector, Alibag, and also submitted
an additional statement on 21/4/1998 after the visit of the
Deputy Collector on 20/4/1998, the petitioners did not hear
about the progress of the proceedings, nor did they come across
any notification. It is in the year 2010 that after the period of
more than 10 years, when they were asked to stop the activity
of cultivation and they came across the entry in the mutation
records, they filed the applications under RTI Act and sought
necessary information and thereafter approached the Court.
The application filed by the petitioners under the RTI Act and
the document submitted are all part of the petition and
therefore, from the date of knowledge that their land has been
declared as 'Private Forest' and deemed to have vested in the
State Government, we do not find that the petition suffers from
delay and laches, as the petitioner did not hear anything from
the respondents and they were justified in assuming that the
proposed action initiated under section 21(5) of the Act of
1975, was dropped and particularly, when they garnered under
an impression that the notification dated 22/10/1998 itself had
lapsed on 4/10/1999.
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As far as another objection raised in the affidavit of the
State that the petitioner's remedy lies somewhere else, we do
not find merit in the same, as we have noted that the Forest
Department which has invoked Section 21 in declaring the land
of the petitioner as 'private forest', the burden lies on the Forest
Department, to satisfy the Court that all parameters of Section
21 of the Act of 1975, have been met. It is also to be noted that
the decision of the State Government to declare the land
following the procedure under section 21 is given finality by
virtue of sub-section (4) of Section 21, but what is expected is,
that before declaring the land to be 'Private Forest', the
Government shall take into consideration the objections,
proceedings and report and the opinion of the Collector, or as
the case may be, of the authorised officer and then decide
whether such tract of land or any part thereof, should or should
not be declared as 'Private Forest'.
In the wake of the finality attached to the decision of the
State Government, which is published in the Official Gazette,
we do not find that there is any other remedy available to the
petitioner in form of a statutory appeal or so, and in the wake
of the finality attached to the decision of the State Government,
the Writ Petition is the only remedy which the petitioners are
entitled to invoke and therefore, we had entertained the Writ
Petition.
23. As far as the merits of the case are concerned, it is to be
noted that on 22/10/1997, the State Government published a
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notification in the Official Gazette purportedly in terms of
section 21(1) of the Act of 1975, proposing the subject lands to
be declared as 'Private Forest' and calling upon the interested
persons to file their objections. The petitioners also received
the notices in the nature of show cause dated 23/3/1998 and
the petitioners submitted their detailed objection on 17/4/1998
to the District Collector, specifically pointing out that the lands
are agricultural lands and the petitioners are cultivating the
same. Voluminous evidence was also placed before the
Collector about the plants standing on the subject land having
been planted by purchasing the same for nursery and they
being nurtured for years together before they took shape of
trees. It was, therefore, the specific stand of the petitioners that
the vegetation on the subject land was not forest, but human-
made and man created. The petitioners even submitted the
receipts of the purchase of the plants/saplings and specifically
the forest species and also produced documentary evidence as
regard the payments made to the labours, engaged for planting
of the sapling, nurturing them and growing them into trees.
It is this material, which prompted the Deputy Collector
of Revenue and Forest to communicate to the Principal
Secretary (Forest and Revenue) that it was not possible to
determine whether the trees standing on the said lands were
naturally grown and whether there was any intervention of
human agency and therefore, it was suggested that an expert
opinion be taken in that regard.
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The Forest Department prepared a note agreeing to the
said submission, but adopted a contradictory stand about the
nature of the land as it recorded that as per contention of Mr.
Dharap (one of the petitioner), he had nourished 4000 trees by
artificial plantation and such kind of trees are planted
artificially out, of which 400 plants were alive. The contention
of Mr. Dharap in this regard, without any specific reason was
not believed.
However, the Law and Judiciary Department prepared an
exhaustive report on 29/4/,1999 reiterating that the Forest
Department will have to call for an expert opinion before the
notification is issued under sub-section (5) of Section 21 of the
Forest Act, 1975, and if not, action of the Forest Department is
vulnerable and liable for challenge. However, in ignorance of
the same, on 13/10/1999 the State of Maharashtra issued the
impugned notification purportedly under section 21(5) of the
Act of 1975, declaring the said land as 'private forest' which is
followed by corrigendum as there was error in the survey
numbers of one of the subject land.
24 It is worth to note that in utter ignorance of the factual
aspect of the inspection of the site, which found trees planted
and standing on the land, and the question that arose for
consideration, whether they were naturally or artificially grown
with the intervention of human agency and the Deputy
Collector was of the opinion that opinion of an expert should be
called for determination of the said issue. Even the Law and
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Judiciary finds the same, but in utter ignorance, without taking
any further steps, the final impugned notification was issued, as
the State Government failed to obtain a conclusive expert
opinion to determine whether the trees standing on the subject
land were planted artificially or grown naturally, as required
under Section 21A of the Act of 1975.
It is pertinent to note that a positive assertion was made
by the petitioner before the Collector that they had planted
various trees species and even produced evidence to that effect
and therefore, as per mandate of Section 21A, it could not be
covered within the purview of 'Private Forest'. However, in
utter ignorance of the fact that the land was agricultural and
afforested by human agency and despite offering the details of
plantation activity since 1984, the respondents, according to us,
had failed to consider the evidence. The panchnama prepared
by the Deputy Collector on 20/4/1998 confirmed that
afforestation was made by artificial means or human agency
and yet this panchnama was ignored by the respondents. The
opinion of the Conservator of Forest, Thane, being termed as
'expert opinion' is also not of any consequence as we find that it
cannot be considered as valid expert opinion with any basis for
declaring the lands as 'Private Forest'.
25. Another ground which Mr. Naik has pressed into service,
is the jurisdictional failure on part of the respondents to meet
the parameters of Section 21 of the Act of 1975, and he has
invoked sub-section (8) of Section 28, to submit that the
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notification dated 22/10/1997, lapsed on 21/10/1998, and
therefore, the impugned notification dated 13/10/1999 along
with its corrigendum, issued after lapse of the original
notification, has rendered them invalid.
We do not find the said contention to be of correct
interpretation of sub-section (8) of Section 21 of the Act and we
do not agree with the said submission.
Sub-section (8) of Section 21 reads to the following
effect:-
"On the publication of a notification under sub-section (1) in
respect of any tract of land, it shall not be lawful for the owner of
such tract of land or any other person to do therein, except with the
previous permission in writing of the Divisional Forest Officer, any
of the following things for a period of one year from the date of
such publication, or till the date of the publication of the
notification under sub-section (5), or as the case may be, till the
date of communicating the decision under sub-section (7),
whichever period expires earlier, namely :--
(a) the breaking up or cleaning of the land for cultivation ;
(b) the pasturing of cattle ;
(c) the firing or cleaning of the vegetation ;
(d) the girding, tapping or burning of any tree or the
stripping off the back or leaves from any tree :
(e) the lopping and pollarding of tree ;
(f) the cutting, sawing, conversion and removal of trees and
timber ; or
(g) the quarrying of stone or the burning of lime or charcoal
or the collection or removal of any forest produce or its
subjection to any manufacturing process."
26. A careful reading of the said sub-section, in the light of
the other sub-sections, make it clear that on publication of the
notification under sub-section (1) in respect of any tract of
land, certain restrictions are imposed on the owner and except
with the previous permission in writing of the Divisional Forest
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Officer, he is prohibited from carrying out such activities for a
period of one year or till the date of publication of the
notification under sub-section (5) or as the case may be, till the
date of communicating the decision under sub-section (7),
whichever period expires earlier.
Thus, the restriction under sub-section (8) is for carrying
out the activities which are declared to be prohibited by the
notification published under sub-section (1) in respect of any
tract of land, but we do not find any embargo in law, that if the
State Government do not publish the declaration under sub-
section (5) within period of one year, it cannot do so, as we find
that the restrictions imposed shall operate for a period of one
year as on the date of publication and sub-section (1)
notification or till the date of publication of notification under
sub-section (5), but that itself would not render a notification
published under sub-section (5) illegal, if published after one
year.
We do not accept the contention of Mr. Naik in that
regard.
27. However, since we are satisfied that the procedure that is
prescribed under sub-section (1) of Section 21, is not adhered
to, and it was necessary for the State Government to apply its
mind to the objections, proceedings and report and the opinion
of the Collector, but without a conclusive opinion being
expressed that the trees standing on the subject land were
natural trees and therefore, would be covered under the
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definition of 'forest', we do not find that the State Government
was justified in undertaking a half hearted exercise in respect of
the lands of the petitioners.
28. Resultantly, the declaration published in respect of the
petitioner's land is liable to be set aside by quashing and setting
aside the impugned notification dated 13/10/1999. Similarly,
the mutation entry deleting the name of the petitioners and
recording the name of the Government in the Other Right's
Column, is also quashed and set aside.
Since the petitioners are still in possession of the subject
land, we direct that they shall continue to be in possession
thereof.
In wake of the aforesaid, Writ Petition is made absolute.
(MANJUSHA DESHPANDE,J) (BHARATI DANGRE, J.)
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