Bombay High Court
Kamran Kadir Shaikh And Ors vs State Of Maharashtra Thorugh Its ... on 6 February, 2019
Bench: R. M. Borde, V. L. Achliya
(8) WP 5790-18
Amk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5790 OF 2018
Kamran Kadir Shaikh & Ors. .. Petitioners
Vs.
State of Maharashtra & Ors. .. Respondents
Mr. D. S. Patil for the Petitioners.
Mr. R. S. Pawar, AGP for Respondent Nos.1 to 7-State.
CORAM : R. M. BORDE & V. L. ACHLIYA, JJ.
DATE : 6th FEBRUARY, 2019.
P. C. :
1. The Petitioners are objecting to the entry recorded by the Talathi of village Pangloli bearing Mutation Entry No. 139 on 30.09.2008 recording therein the land Gat Nos. 24 and 26 belonging to the Petitioners is a private forest. According to the Petitioners, while considering the identical issue in respect of Gat No.7 of the same village, the Division Bench of this Court has issued a declaration that the said Gat number cannot be classified as a private forest and as such directed quashment of mutation entry in respect of said land number. The Petitioner contends that they are similarly placed as in the case of Petitioner in Writ Petition No. 14168 of 2016 decided on 19.06.2017. This Court, while disposing of the aforesaid Writ Petition, has observed in paragraph Nos.16 and 17 of the Judgment thus:
"16. After having considered all these aspects the Supreme Court opined that the word "issue" cannot be construed in its narrow sense. In 1/3 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:14 ::: (8) WP 5790-18 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, 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 Forest 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 2/3 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:14 ::: (8) WP 5790-18 Indian Forest Act, 1927 or Forest Conservation Act, 1980 or any other statute and the adjudication in 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."
2. The Respondents shall have to demonstrate that the State has issued notice within contemplation of Section 35(3) of the Maharashtra Private Forest (Acquisition) Act, 1975 and unless it is demonstrated that such a notice was issued to the Petitioner, action of the State of including the subject Gat numbers within the category of private forest cannot sustain. The Respondent-State is, therefore, called upon to place the material before the Court demonstrating that before recording the entry in respect of the landed property of the Petitioner as a private forest. A notice within contemplation of Section 35 (3) was served upon the Petitioner. Respondent Nos.1 to 6 shall file Affidavit within a period of two weeks from today. In the event of failure, Respondent No.3 shall remain present before the Court.
3. Stand over to 20.02.2019.
[V. L. ACHLIYA, J.] [R. M. BORDE, J.] 3/3 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:14 :::