Bombay High Court
Racek Industries Pvt Ltd vs The State Of Maharashtra And 2 Ors ... on 28 November, 2018
Author: A.S.Oka
Bench: A.S.Oka, Sandeep K. Shinde
902-WP-637-2013.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.637 OF 2016
Racek Industries Pvt. Ltd.
A Company incorporated under the
Indian Companies Act, 1913, having its
registered office at -L.B.S.Marg,
Vikhroli (West),
Mumbai, through its Manager
Mr. Debasish Dey
Age:- Years, Occup: Service. ... Petitioner
Versus
1 The State of Maharashtra
Through its Principal Secretary,
Revenue and Forest Department,
Summons to be served on the
Office of Government Pleader,
High Court (AS)
2 Dy. Conservator of Forest,
Bungalow 9, Bungalow Area
Thane Forest Division,
Thane 400 603
3 The Tahasildar
Kurla (Mulund-West)
Mumbai- 400 080 ... Respondents
...
Mr. Soura Subha Ghosh with Ms. Parinaz Nagporwala I/by M/s.
Hariani & Co. for the Petitioner.
Mr. H.S.Venegaonkar, Addl. G.P. for the Respondent-State.
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902-WP-637-2013.odt
Mr. Sagar Patil for the Respondent-BMC.
CORAM : A.S.OKA &
SANDEEP K. SHINDE JJ.
DATE : 28 NOVEMBER, 2018
ORAL JUDGMENT : [Per A.S.Oka, J.]
Parties were put to notice that this Petition will be taken up for final disposal. Accordingly, we have the learned counsel appearing for the parties.
2 This Petition under Article 226 of the Constitution of India relates to a land more particularly described in paragraph 2 of the Writ Petition, for the sake of convenience we are describing the lands described in paragraph 2 as "the said lands". The Petitioner- company claims ownership in respect of the said lands on the basis of a registered sale deed dated 13 th October, 1955, a copy of which is annexed at Exhibit 'B' to the Petition. In the affidavit-in-reply filed by the first and second Respondents by Girija Narendra Desai, there is no serious dispute raised regarding the acquisition of the said lands by the Petitioner in the year 1955. The controversy in this petition is Shivgan 2/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 ::: 902-WP-637-2013.odt whether the said lands are 'private forest' within the meaning of Maharashtra Private Forests (Acquisition) Act, 1975 (for short 'the Private Forests Act'). A mutation entry bearing no.152 was made in the year 2006 on the basis of the notice issued under Sub-section (3) of Section 35 of Indian Forest Act, 1927 (for short "the Forest Act"). The Mutation entry was made for incorporating the entry in other rights column of 7/12 extracts of the said lands that the holding is subject to the provisions of the Private Forests Act. 3 On the basis of the judgment and order dated 30 th January, 2014 of the Apex Court in Civil Appeal No.1102 of 2014 (arising out of S.L.P. ( C ) No.10677/2008) in the case of Godrej & Boyce Manufacturing Company Limited & Anr. v. State of Maharashtra & Ors., mutation entry no.160 was made on 13th December, 2014 by which earlier mutation entry no.152 was cancelled.
4 Suo-motu review of the mutation entry no.160 was Shivgan 3/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 ::: 902-WP-637-2013.odt undertaken by the Tahsildar. By the order dated 20th June, 2016, Tahsildar, Kurla disposed of Suo-motu Review proceedings and directed the restoration of mutation entry no.160. The order of the review was made on the ground that the present Petitioner was not an appellant in the judgment/order dated 30 th January, 2014 in the case of Godrej & Boyce (Supra) and that said lands were not the subject matter of the said decision of the Apex Court. 5 The submission of the learned counsel appearing for the Petitioner is that mutation entry no.160 was made only on the basis of the notice issued under Sub-section (3) of Section 35 of the Forest Act and, therefore, the State Government proceeded on the footing that said lands became private forest by virtue of Sub-clause (iii) of Clause (f) of Section 2 of the Private Forests Act. He submits that as there is no evidence of service of the said notice on the Petitioner, the law laid down by the Apex Court in the case of Godrej & Boyce (Supra) squarely applies and the said lands cannot be termed as a private forest. He also invited our attention to the judgment and Shivgan 4/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 ::: 902-WP-637-2013.odt order dated 27th September, 2018 passed by a Division Bench of this Court in Writ Petition No.4814 of 2016 (Devkumar Gopaldas Agarwal v. State of Maharashtra & Ors. and other connected matters) He submits that as the Petitioner has acquired the said lands before the date on which Private Forests Act came into force, the said decision has no application.
6 The learned AGP appearing for the first and second Respondents on a query made by the Court submitted that there is no material available on record to show that the notice under Sub- section (3) of Section 35 of the Forest Act was served to the owner of the said lands. However, he submitted that the notice was published in the Bombay Government Gazette of 6th September, 1956. He submitted that the publication of the notice in the Gazette amounts of issuance of notice and, therefore, sub-clause (iii) of Clause (f) of Section 2 of the Private Forests Act will squarely apply. He would, therefore, submit that the said lands being private forest, the same vested in the State Government by virtue of Sub-section (1) of Shivgan 5/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 ::: 902-WP-637-2013.odt Section 3 of the Private Forests Act and hence, no interference is called for. He submits that even otherwise, the said lands constitute a private forest. He submits that there was every justification for passing the order in review.
7 Thus, only question which falls for consideration of this Court is whether in absence of any document or material on record to show that the notice published on 6th September, 1956 under Sub- section (3) of Section 35 of the Forest Act was served on the Petitioner, by virtue of Sub-clause (iii) of Claue (f) of Section (2) of the Private Forests Act, the said lands became a private forest. 8 The issue is no longer res-integra. The Apex Court in the case of Godrej & Boyce (Supra) held that mere issuance of a notice under Sub-section (3) of Section 35 is not sufficient to attract sub- clause (iii) of Clause (f) of Section 2 of the Private Forests Act and the said sub-clause (iii) will be attracted provided the notice under Sub-section (3) of Section 35 of the Forest Act is served. In the Shivgan 6/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 ::: 902-WP-637-2013.odt present case, admittedly, there is no material placed on record to show that the notice dated 6th September, 1956 was served to the owner of the said lands.
9 We may note here that in the facts of the case, the learned AGP stated that the decision of the Division Bench in the case of Devkumar G. Aggarwal (Supra) will not apply. 10 We find from the Mutation Entry No.152 that an entry of private forest was made only on the basis of the notice issued under Sub-section (3) Section 35 of the Forest Act. As the said notice under Sub-section 3 of Section 35 of the Forest Act was the only basis of mutation entry no.152, we hold that mere publication of the notice under Sub-section (3) of Section 35 of the Forest Act on 6 th September, 1956 without its acual service on the owners will not attract sub-clause (iii) of Clause (f) of Section 2 of the Private Forests Act. It is not necessary for us to adjudicate on the questions whether the said lands fall in any of the other clauses of clause (f) of Shivgan 7/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 ::: 902-WP-637-2013.odt Section 2 of the Private Forests Act and whether the said lands will constitute a forest within the meaning of Forest Conservation Act, 1980. In the circumstances, the entry made on the basis of mutation entry no.152 in respect of the subject lands will have to be deleted from the revenue records and even the order dated 28 th February, 2016 will have to be set aside to the extent of the subject lands. 11 Hence, we pass the following order:
(i) We hold that the said lands are not governed by Sub-clause (iii) of Clause (f) of Section (2) of the Private Forests Act;
(ii) We quash and set aside the mutation entry no.152 as well as order dated 28th February, 2016 passed by Tahsildar, Kurla only in relation to the said lands described in paragraph 2 of this Petition;
(iii) We make it clear that we have made no adjudication on the question whether the said lands are covered by any other sub-clauses of Clause
(f) of Section 2 of the Private Forests Act save and except sub-clause (iii). If any of other clauses are attracted, the State Government is free to take action in accordance with law for treating the Said Lands as a Private Forest. We also make it clear that we have not made adjudication on the question whether Section 2 of the Forest (Conservation) Act, 1980 will apply to the said lands and the said issue Shivgan 8/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 ::: 902-WP-637-2013.odt is left open to be decided by the appropriate Competent Authority;
(iv) Rule is made partly absolute on the above terms.
(SANDEEP K. SHINDE, J.) (A.S.OKA, J.) Shivgan 9/9 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 30/12/2018 09:50:31 :::