M/S. Global Estate Developers vs State Of Maharashtra Through Its ... on 19 June, 2017

[Cites 22, Cited by 0]

Bombay High Court

M/S. Global Estate Developers vs State Of Maharashtra Through Its ... on 19 June, 2017

2. Rule made returnable forthwith. By consent of the parties taken up for final hearing. Initially, when this matter was heard for admission, this Court found, prima facie, that this case would be covered by the decision in Godrej and Boyce Manufacturing Company Limited v/s State of Maharashtra 1 and accordingly, the petition was notified for final disposal. The State thereafter filed an affidavit in reply on 18th April, 2017. An attempt at intervention was made by third parties on the ground that in a group of petitions raising similar issues, an order was 1 (2014) 3 SCC 430 ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 2 wp1468.2016 passed directing that copies of the similar petitions should be served on the intervenor. However, no such order was produced by the intervenor. Leave was granted to take out an application for intervention, if so advised. However, on 4th May, 2017 the counsel appearing for the intervener stated that she did not wish to apply for intervention.

3. This petition impugns mutation entry No.139 dated 30th September, 2008 effected by the Gaon Kamgar Talathi - Respondent No.7 whereby he recorded that the land forming subject matter of the petition was subjected to the provisions of the Maharashtra Private Forest (Acquisition) Act, 1975 (for short "Private Forest Act"). The petitioners seek a declaration that their land is not forest land and therefore the impugned mutation entry is liable to be quashed and set aside.

4. The facts in brief are as follows : The petitioners had purchased land bearing Gat No.7 (Old Survey No.3 Hissa No.2/2) admeasuring 4 H and 92 R situated at Village Pangloli, Taluka Maval, District Pune. In the year 1990-91 a consolidation scheme was effected in village Pangloli and the land bearing Survey No.3/2/2 was renumbered as Gat No.7. The scheme was recorded in the revenue record through mutation entry No.1 dated 27th June, 1991. The land was purchased from erstwhile owners by the ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 3 wp1468.2016 petitioners' partners after taking search of the revenue record and after being satisfied about the title of their vendors. It appears that the partners of the petitioners also sought information about the land from the Forest Office and in response to the query on behalf of the petitioners, the Forest Office confirmed that the said land is not subject matter of any notice or notification under the Private Forest Act. The petitioners have relied upon correspondence to this effect (see Exhibit "B"). It is in these circumstances that the petitioners purchased the land vide sale deed dated 19th November, 2007 from their vendors M/s. San Sif Investment. The sale deed came to be registered with the Sub-Registrar of Assurances under Serial No.5260 of 2007 and the name of the petitioner was recorded in the 7 X 12 extract vide Mutation Entry No.117 dated 10th December, 2007.

5. It is the petitioners' case that the said land was never forest land and not subjected to any forest related activities. However, by the impugned entry the Gaon Kamgar Talathi has recorded that the petitioners' land is subject to the provisions of the Private Forest Act. No notice was given of the said entry to the petitioners or its partners. The petitioners have contended that they were using land for grazing animals and for cultivating crops like Jawar, Harbhara etc. ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 4 wp1468.2016

6. The petitioners have averred that no notice was ever received from the forest office. Being aggrieved by the impugned mutation entry, the petitioners filed RTS Appeal No.622 of 2014 and Application No.288 of 2010 before the Sub- Divisional Officer, Maval for deleting the impugned Mutation Entry. The appeal and said application are still pending.

7. Mr. Patil, learned counsel appearing for the petitioners has contended that the petitioners' appeal and application are pending for no apparent reason. Mr. Patil further contended that in view of the decision of the Supreme Court in Godrej and Boyce Manufacturing Co. Ltd. (supra) mere issuance of notice under Section 35(3) of the Indian Forest Act, 1927 was not sufficient since such a notice was required to be served. In the present case the notice has not been served. It is submitted that the impugned mutation entry was recorded without giving any notice to the petitioners, therefore, in violation of principles of natural justice. Secondly, the land was never declared as a "private forest" and no notice under Section 35(3) was received. He submitted that Gat No.7 was never a subject matter of any notice and it appears that notification has been issued without taking into consideration the Consolidation Scheme of 1991. No notice under Section 145 of the Indian Forest Act was published and by virtue of the decision in Godrej and Boyce (supra) it was impermissible for ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 5 wp1468.2016 the respondents to contend that the land was a forest land. Mr. Patil submitted that the petitioners were deprived of an opportunity to show cause, apropos the mutation entry and as owner of the land, it was entitled to file objections and could have led evidence in the matter. This opportunity would have been available to the petitioners had a notice under Section 35(3) been served.

8. According to Mr. Patil, the land is not covered with stumps of trees of forest. The land is not pasture land, water logged or non cultivable land lying within or linked to a forest as may be declared to be forest by the State Government. The said land is not having any forest produce whether standing, felled, found or otherwise. According to Mr. Patil the adjoining land owners have already obtained N.A. orders. Finally, he submitted that the possession of the land is with the petitioners and the respondents have neither sought nor taken possession of the land. On the aforesaid grounds, it is submitted that the impugned mutation entry is liable to be set aside.

9. On behalf of the respondents Mr. Manish Pabale, the learned A.G.P relied upon the contents of the affidavit filed by one Satyajeet Madanmohan Gujar on behalf of respondent nos.1 to

4. The affidavit deals extensively with provisions of the ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 6 wp1468.2016 Maharashtra Private Forests (Acquisition) Act, 1975 and Indian Forest Act, 1927. The learned A.G.P submitted that the land involved is a forest and deemed to be a reserved forest under the Private Forest Act. That by virtue of Section 3(1) and 3(3) of the Indian Forest Act, 1927 the land is deemed to be private forest and vests in the State Government. The panchnama shows that the petitioners have illegally constructed a labour shed of 10 X 15 ft. by encroaching upon the land and an old temple is also seen in that area. The learned A.G.P further submitted that a notice under Section 35(3) of the Indian Forest Act, 1927 was intended to take some action and, therefore, service of notice was necessary as the principles of natural justice were to be observed. However, as far as the Private Forest Act is concerned, Section 35(3) is only meant for identification of private forest and for such identification, issuance of notice or publication of notification is sufficient and 'service' of notice is not necessary. Reliance is also placed on Section 2(c-i) and Sub-Sections (i) to (v) of the Private Forest Act.

10. According to the learned A.G.P an appeal has been filed under Section 6 of the Private Forest Act and that the appeal will decide whether the land is under a private forest or not, and/or vesting in the State Government or not. According to the deponent of the affidavit, the decision of the Supreme Court in ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 7 wp1468.2016 Godrej and Boyce (supra) is not applicable since the factual position in the case at hand is different. The identification of private forest is to be done under the Private Forest Act exclusively by the forest department. Reliance is placed on the State Government's letter No.PRF-1476/136990-F-6 dated 7th March, 1980 under which the following portion has been relied upon :

"It has been made clear by the Law and Judiciary Department that Section 2(f) of the Maharashtra Private Forest (Acquisition) Act, 1975 defines Private Forests, as Forests which is not the property of Government and includes lands, sites, mentioned in sub-clause (I) to (vi) thereof as also those on which tree growth is found though not abundant as natural forest, and that this would vest in Government on the appointed day i.e. 30th August, 1975 whether possession thereof has been taken after due identification of the lands under Section 5 of the Act, and if any objections etc. are received from the owners thereof; the Collector will have to adjudicate such cases under Section 6 of the Act. By operation of Section 3(3) of the Act, the rights of the previous owners have been extinguished as all the private forests lands have since 30th August, 1975 deemed to have been 'Reserved Forest'"

::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 :::

8 wp1468.2016 Relying on the aforesaid it is submitted that the Private Forest Act which came into force on 30th August, 1975 and that by virtue of Section 5 any person resisting the authorities is liable to be removed by force.

11. In the para wise response, it is denied that the petitioners are the owners of the land and therefore the legal status of the land is reserved forest and ownership thereof vests in the State Government from the appointed day i.e. 30th August, 1975. Any mutation entry contrary to such vesting is illegal and void. The land was always a forest land and the petitioner would have been aware of the mutation entry No.139. It is denied that the land is under cultivation or under peaceful possession of the petitioner. It is further contended that service of notice under Section 35(3) is essential only under the Indian Forest Act, 1927. The petitioners are not entitled to the benefit of the Apex Court judgment in Godrej and Boyce (supra).

12. Having considered the rival submissions we find that it is appropriate to reproduce the provisions of Section 35 of Indian Forest Act 1927 as amended by the Indian Forest (Bombay Amendment) Act, 1955.

::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 :::

9 wp1468.2016 "35. Protection of forests for special purposes.--

(1) The State Government may, by notification in the Official Gazette,regulate or prohibit in any forest or wasteland--

a. the breaking up or clearing of land for cultivation; b. the pasturing of cattle; or c. the firing or clearing of the vegetation; when such regulation or prohibition appears necessary for any of the following purposes:--

(i) for protection against storms, winds, rolling stones, floods and avalanches;

(ii) for the preservation of the soil on the ridges and slopes and in the valleys of hilly tracts, the prevention of landslips or of the formation of ravines, and torrents, or the protection of land against erosion, or the deposit thereon of sand, stones or gravel;

(iii) for the maintenance of a water supply in springs, rivers and tanks;

(iv) for the protection of roads, bridges, railways and other lines of communication;

(v) for the preservation of the public health. (2) The State Government may, for any such purpose, ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 10 wp1468.2016 construct at its own expense, in or upon any forest or wasteland, such work as it thinks fit.

       (3)     "No       notification             shall    be    made        under

       subsection(1)

nor shall any work be begun under subsection (2), until after the issue of a notice to the owner of such forest or land calling on him to show cause, within a reasonable period to be specified in such notice, why such notification should not be made or work constructed, as the case may be, and until his objections, if any, and any evidence he may produce in support of the same, have been heard by an officer duly appointed in that behalf and have been considered by the State Government."

13. In this respect, it is observed that in case of Godrej and Boyce (supra), the Supreme Court has observed that service of notice under Section 35 is mandatory. On considering the facts, the Court held that the word "issue" contained in Section 35(3) should be read in a wider perspective.

14. Godrej and Boyce (supra) held that the ownership of the land concerned, did not stand transferred to or vested in the ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 11 wp1468.2016 State merely by issuance of the notice and without service of the said notice upon the land owner even if the notice was published in the gazette. It was found that even the requirement as to opportunity to the owner to object to transfer and vesting in the State was not complied with. The Court considered in detail the effect of the Maharashtra Private Forest (Acquisition) Act, 1975, vesting of the private forest in the State Government and the fact that the constitutional validity of the Private Forest Act was challenged in J. C. Waghmare vs. State of Maharashtra2 and in that case this Court held that the land owner who had been issued notice under Section 35(3) of the Forest Act, who had not been heard must have an opportunity to contend that the land is not a forest within meaning of Section 2(c)(i) of the Private Forest Act and that the land does not automatically vest in the State by virtue of Section 3 of the Forest Act.

15. This position was not contested but was conceded by the State of Maharashtra and this view accepted by the State having attained finality. The Court also considered the effect of the judgment of the Bombay High Court in Chintamani Gajanan Velkar vs. State of Maharashtra3. The Court construed the word "notice has been issued under Section (3) of Section 35 of the Forest Act in a narrow sense holding that it did not require service of such 2 AIR 1978 Bom. 119 3 2000 (3) SCC 143.

::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 :::

12 wp1468.2016 notice. The Court found that the view referred in Chintamani Velkar (supra) was no longer a good law.

16. After having considered all these aspects the Supreme Court opined that the word "issue" cannot be construed in its narrow sense. In the affidavit in reply the stand taken by the Government is that the judgment in Godrej and Boyce (supra) is not applicable to the facts of this case. We find that the contentions in the affidavit in reply and as canvassed by the learned A.G.P are untenable. In the facts of the present case and the law as laid down in Godrej and Boyce (supra) will squarely apply. An attempt has been made in the affidavit in reply to show that the land is not agricultural land but it is a private forest. Reliance is placed on google images and photographs. Considering this objection, we have our reservation as to the petitioners' contention that the land is used for grazing etc. There is no evidence of such use. However, we are not required to enter into the ascertainment of location of the land or analyse whether the land was a forest land or otherwise. We are concerned only with one question whether the land is a private forest under the Private Forests Act. We are unable to agree that the case in hand is different and that the petitioner does not deserve any relief.

17. Having considered the various contentions of the State, ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 13 wp1468.2016 in their affidavit in reply, in our view there is no reason why the petition should not be allowed. Admittedly, notice under Section 35(3) of the Indian Forest Act has not been served upon the petitioners. There is an express statement in the affidavit in reply that a notice need not be served. In paragraph 19 it was contended that a notice under Section 35(3) or notification under Section 35(1) is "irrelevant in this case". We are unable to accept this contention. In conclusion, we hold that once the State has conceded that a notice under Section 33(3) has not been served as contemplated in Godrej and Boyce (supra), the petition must succeed. It has not been established that the lands, bearing Gat No.7 is a private forest as contemplated under Section 2(f)(iii) of Private Forest Act and the impugned mutation entry is required to be set aside. However, we must hasten to add a rider which was added in the case of Sinhagad Technical Education Society vs. Deputy Conservator of Forest4 to which one of us (A.S. Oka, J.) was a party. The Court considered the controversy and applied the law as laid down in Godrej and Boyce (supra). It is however, necessary to add that we have considered only the question whether the land constitutes a private forest under the Maharashtra Private Forest (Acquisition) Act, 1975. We have not considered whether the land is a forest within the meaning of Indian Forest Act, 1927 or Forest Conservation Act, 1980 or any other statute and the adjudication in 4 2015 (6) ALL M.R. 371 ::: Uploaded on - 23/06/2017 ::: Downloaded on - 24/06/2017 00:33:06 ::: 14 wp1468.2016 the instant case is confined to ascertaining the status of the land as contemplated under Section 2(f)(iii) of the Private Forest Act and in this respect, we find that the land is not a private forest.

18. In the circumstances we pass the following order :

(a) Mutation Entry No.139 dated 30th September, 2007 in respect of land bearing Gat No.7 of village Pangloli, Taluka Maval, District Pune is hereby quashed and set aside;

(b) Rule is made absolute and the petition is disposed of in the aforesaid terms.

(c) No orders as to the costs.

     (A.K. MENON, J.)                                  (A.S. OKA, J.)




        ::: Uploaded on - 23/06/2017              ::: Downloaded on - 24/06/2017 00:33:06 :::

Unlock Advanced Research with PRISMAI

Bombay High Court