Bombay High Court
Waman Namdeorao Dharne vs The State Of Maharashtra & Ors on 13 July, 2017
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2232 OF 2005
Waman Namdeorao Dharne,
aged about 35 years,
Secretary of Gram Nyay Mandal
under Gram Sabha of Mouza -
Lonhara, Post - Nand, Tahsil -
Bhivapur, District - Nagpur. ... PETITIONER
Versus
1. The State of Maharashtra,
Revenue and Forest Department,
through its Secretary,
Mantralaya, Mumbai 400 032.
2. The Forest Development
Corporation of Maharashtra,
through its Managing Director,
Civil Lines, Nagpur.
3. The Collector, Nagpur. ... RESPONDENTS
Shri N.N. Thengre with Shri S.K. Thengre, Advocates for the
petitioner.
Shri N.H. Joshi, AGP for respondent Nos. 1 & 3.
Shri Ashwin Deshpande, Advocate for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 13, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Thengre, learned counsel for the ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 2 petitioner, Shri Joshi, learned AGP for respondent Nos. 1 & 3.
2. Shri Deshpande, learned counsel points out that as the counsel representing respondent No. 2 has ceased to be an Advocate, notice is required to be sent to Respondent No. 2. However, upon request of the Court, in the absence of instructions and records, he has attempted to assist the Court.
3. The submission of Shri Thengre, learned counsel on behalf of the petitioner is, forest vested in Gram Panchayat at Lonara has been illegally cut and Teak trees have been sold by Respondent No. 2. By inviting attention to the provisions of the Constitution of India, Article 243-G and Article 40, the provisions of Sections 161 to 163 of the Maharashtra Land Revenue Code, 1966, the provisions of Section 51 of the Maharashtra Gram Panchayats Act, 1958 and the provisions of Section 29 of the Indian Forest Act, 1927, he submits that forest trees which have been cut illegally, actually vested in Gram Panchayat and hence suitable action needs to be taken against the respondents. He further points out that this Court has ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 3 while passing interim orders restrained the respondents from cutting remaining trees in the forest. That interim order was vacated but the issue of entitlement of the Gram Panchayat to the value of trees is kept open. According to him, therefore, Gram Panchayat at Lonara is entitled to price of 4076 trees which have been cut illegally. He is placing strong reliance upon representation dated 23.01.2005 sent by the President/ Secretary of Sarwabhaum Gram Sabha at Lonara and minutes of monthly meeting of Gram Panchayat at Dhamangaon, Tahsil
- Bhiwapur, District - Nagpur. He also invites attention to communication sent to the Collector on 20.02.2005.
4. The learned AGP submits that none of the provisions of law relied upon by the petitioner vest title to the trees standing in forest with Gram Panchayat. Our attention is drawn to the Maharashtra Act No. XLV of 1945 amending the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Regulation of Trade) Act, 1969. He submits that Section 4 thereof expressly stipulates that though Nistar rights ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 4 can be exercised, ownership of land or trees does not vest in Panchayat.
5. Shri Deshpande, learned counsel also submits that the provisions of Nistar in favour of residents of Gram Panchayat itself show that Gram Panchayat is not the owner.
6. With the assistance of parties, we have perused papers. The documents placed on record only mention Nistar of residents. There is no document showing transfer of ownership of rights either to forest land or to forest trees in favour of any Gram Panchayat. The document produced by the petitioner on record is a copy of Nistar Patrak at page 25 which mentions that rights of trees in respect of land merged with the State Government. At page 29, while dealing with rights of people of other villages in respect of land in a particular village and vice versa, remark put is "Nil". Below Other Facilities at Sr. No. 3, it is stipulated that the villagers can take roots, bark for use of agriculture and for own consumption without any cost. At Sr. No. 4, it is mentioned that the villagers can take branches ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 5 of trees, thorns for the purpose of fencing of fields at free of cost.
7. The grievance made in representation dated 25.01.2005 reveals that Gram Sabha had opposed cutting of trees by the Forest Development Corporation. It appears that the trees were cut and removed in police protection without taking villagers into confidence, therefore, the grievance has been made. It also appears that Forest Development Corporation had marked 4226 trees for cutting purposes and had cut 4076 Teak trees actually.
8. "Nistar" is a concept recognized in Chapter X, Part B. Part 'A' deals with Record of rights while Part B is about Rights in unoccupied lands. As per Section 161 of the Maharashtra Land Revenue Code, 1966, the Collector has to maintain Nistar Patrak on all unoccupied land in a village and all matters incidental thereto. Section 162 is about matters to be provided for in Nistar Patrak. Section 163 contains provision for Nistar in certain matters. None of these sections show that ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 6 forest land vesting in the State Government is automatically transferred to and vests in Gram Panchayat. The provisions in Constitution, particularly Article 243-G only empower Legislature of a State to frame law and give certain powers as per that law to Gram Panchayat. Section 243-A empowers Gram Sabha to exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provides. Article 40 is about Organization of Village Panchayats. It costs obligation upon State to organize the same. None of these provisions again show that any property outside village boundaries can vest and become property of Gram Panchayat or Gram Sabha.
9. The provisions of the Maharashtra Village Panchayat Act, 1958, vide Section 51 empowers State Government to vest certain lands in Panchayat. The State Government can, subject to such conditions and restrictions as it may think fit, order such vesting. The articles/ things which can vest in Gram Panchayat are also mentioned in Section 51(1). It does not mention any non-forest or forest ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 7 land, though there is reference to trees. However, such trees must be in the village so as to enable the State Government to exercise its powers under Section 51(1).
10. As rightly pointed out by the learned AGP, Section 4 of the Maharashtra Act No. XLV mentioned supra, specifically stipulates that ownership of minor forest produce contemplated therein, does not include ownership of land or trees. Thus, land or trees does not vest in Gram Panchayat or Gram Sabha at all.
11. Shri Thengre, learned counsel has invited our attention to gazette published by the Government of Madhya Pradesh on 22.08.1955. It carries a notification dated 04.06.1955. There government has exercised powers under Section 29 of the Indian Forest Act, 1927 and made provisions of Chapter IV of said Act applicable to forest areas specified in the Schedule in it. It is apparent that this notification cannot and does not vest title to trees or forest land in the petitioner. Section 29 of the Indian Forest Act, 1927, is on protected ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 8 forests and its reading also does not show that any such right is conferred upon any Gram Panchayat or Gram Sabha. In this situation, we find the material on record insufficient to conclude that Gram Panchayat or Gram Sabha at any time becomes owner of either forest land or forest produce.
12. Shri Thengre, learned counsel has placed reliance upon the Division Bench judgment of this Court in the case of Ashok Maruti Rawoot & Ors. vs. State of Maharashtra & Ors., reported at 2013 (3) Mh.L.J. 733. There the land was vesting in Gram Panchayat and Section 51 of the Bombay Village Panchayats Act, 1958, permits State Government to resume it. In exercise of that power, land was resumed for construction of a memorial. Gram Sabha had also given its no objection for said project. A monument in memory of late Dr. Nanasaheb Dharmadhikari was proposed to be constructed at that place. The facts show that land in the village vesting in Gram Panchayat was sought to be used for a memorial and, therefore, the dispute arose. The facts also show that said person was not brought up in the area of that Gram Panchayat. Thus, this ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 9 judgment does not advance the case of the present petitioner at all.
13. The judgment of the Hon'ble Apex Court in the case of State of U.P. vs. Pradhan Sangh Kshettra Samiti, reported at AIR 1995 SC 1512, points out that 'village' as defined in Article 243-G needs to be understood liberally and widely. In present facts, when title of forest land and trees standing on it is the issue, the citation is not relevant.
14. Respondent No. 3 - Collector has filed reply affidavit and pointed out only Nistar rights and submitted that Survey No. 22, Mouza - Lonara, area 206.21 Hectare and Survey No. 1/1K, area 506.4 Hectare, were forest which was declared as permanent forest. It is accordingly protected and treated by the State Government. The resolution of Gram Sabha in relation to trees in such forest is, therefore, claimed to be illegal and without jurisdiction. It is pointed out that the entire 586.04 Hectare is protected forest land belonging to the State Government and not to any private ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 10 person.
15. Respondent No. 2 - Forest Development Corporation has also commented upon the provisions of Article 243-G and items enlisted in 11th Schedule to urge that forest trees or forest land are not included in that Schedule. It is pointed out that as per provisions of Indian Forest Act, 1927, the ownership of Forest trees and land is being regulated. It is also pointed out that trees have been cut after marking them as a part of management plan. It is claimed that villagers were obstructing the management plan.
16. They have pointed out that felling of trees was completed in November 2004 and after harvesting, 345 cubic meters wood was generated with 1080 fuel beats, the estimated value thereof in reply is stated to be Rs. 85 lakh.
17. The prayers before this Court by the petitioner are to direct Respondent Nos. 1 & 2, not to carry away the cut teak trees or to cut remaining trees and to return the truck load of ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:56:05 ::: wp2232.05 11 trees already removed, to Gram Sabha/ Gram Panchayat. In the light of discussion supra, it is apparent that the prayers are erroneous and unsustainable.
18. However, the fact remains that the villagers have a right of Nistar on said land. Reply affidavit has been filed before this Court by Respondent No. 2 on 07.06.2005. Whether thereafter as a part of management plan, any new trees have been planted and conservation activities are going on, is the moot question. The petitioner or the respondents have not pointed out anything in this respect. The question is, whether the entire forest was removed or then some forest still subsists and villagers, therefore, can still exercise their Nistar rights ?
19. In this situation, we are inclined to grant the petitioner liberty to make representation to Respondent No. 1 on these lines. If such a representation is made to Respondent No. 3 - Collector, within eight weeks from today, Respondent No. 3 - Collector shall try to inquire into the matter and take suitable decision upon it at the earliest.
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20. With these directions, we dispose of the present writ petition. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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