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The Indian Forest Act, 1927
Section 35(3) in The Indian Forest Act, 1927
Section 2 in The Indian Forest Act, 1927
Section 3 in The Indian Forest Act, 1927
Section 35(1) in The Indian Forest Act, 1927

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Bombay High Court
2 The Deputy Conservator Of vs Secretary Of Petitioner No on 19 March, 2010
Bench: A.M. Khanwilkar, R. M. Savant
                                     1

     Lgc
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                                      
                   WRIT PETITION NO.  2181 OF 1999




                                              
                                 WITH
                  CIVIL APPLICATION NO.2281 OF 2003
                                 WITH
                  CIVIL APPLICATION NO.1824 OF 2008




                                             
     1     State of Maharashtra                        ]
                                                       ]




                                 
     2     The Deputy Conservator of                   ]
           Forests, Alibag, District Raigad
                     ig                                ]... Petitioners.

                      Versus
                   
     1     Shri Jitendra Harjivan Timbadia    ]
           R/o.Avakar Bhagyoday, "C" Sarojini ]
           Road, Vile Parle, Mumbai - 400 056 ]
                                              ]
      


     2     Shri Chandulal Vrajlal Lakhani     ]
           R/o. 102/103, Bhagyoday, St.Mary   ]
   



           Road, Vile Parle, Mumbai 400 056   ]
                                              ]
     3     Shri Arun Vrajlal Lakhani          ]





           R/o. 102/103, Bhagyoday, St.Mary   ]
           Road, Vile Parle, Mumbai 400 056   ]
                                              ]
     4     Shri Sachin L Nanavati             ]
           R/o. Arunoday Sarojini, Vile Parle ]





           (West) Mumbai 400 056              ]
                                              ]
     5     Shri Mayur N Amin                  ]
                            th
           R/o. Khusbhu, 6  Road, J.V.P.D.    ]
           Scheme, Vile Parle, Mumbai 400 056 ]




                                              ::: Downloaded on - 09/06/2013 15:44:12 :::
                                    2

     6    Shri Suryakant M Madalani           ]
          R/o. 20/3, Chetalal Mansion, 1st    ]
          Floor, Behind Arora Theatre, Kings  ]




                                                                 
          Circle, Mumbai                      ]
                                              ]




                                         
     7    Shri Y B Vithalani,                 ]
          R/o. 30, Gokul Society, Jam Nagar   ]
          Sourashbi, C/o. Suryakant           ]
                                              ]




                                        
     8    Shri Amit Chimanlal Shah            ]
          R/o. B C Jayandra Bhavan, R.B.S.K. ]
          Road, Dadar, Mumbai                 ]
                                              ]




                               
     9    Shri Maganlal H Timbadia            ]
          R/o. Vijapur Main Road, Post Near
                    ig                        ]
          Taluka Panvel, District Raigad      ]
                                              ]
     10   Shri Valmik Virchand Soni           ]
                  
          R/o. Bungalow No.5, Road No.6,      ]
          Sector I, New Panvel.               ]
                                              ]
     11   Vrindavan Co-operative Horticulture ]
      


          Agricultural Society Limited having ]
          its office at Post Vajapur, Taluka  ]
   



          Panvel, District Raigad.            ]
                                              ]
     12   Shri Rahul Timbadia                 ]





          Secretary of Petitioner No.11       ]
          R/o. 107, Shyam Kamal, Vile Parle   ]
          (East), Mumbai - 400 056            ]
                                              ]
     13   Shri Shreeniwas Bhalchandra Patankar]





          and 5 others, residing at :- Tilak  ]
          Road, Panvel, District : Raigad     ]
                                              ]
     14   The Maharashtra Revenue Tribunal, ]
          Mumbai.                             ]... Respondents.
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Mr. S R Nargolkar, Government Pleader, for the Petitioners. None for the Respondents.

CORAM : A M KHANWILKAR & R M SAVANT, JJ DATED : 19th March 2010 Per Court :- [PER A M KHANWILKAR, J]

1. Heard learned Government Pleader for the Petitioners.

None appears for the Respondents, though served and are represented by advocates on record.

2. This Petition under Article 226 of the Constitution of India takes exception to the decision of the Maharashtra Revenue Tribunal, Mumbai in Rev. Forest 2 of 1998. By the said decision, the Tribunal allowed the appeal preferred by the Respondents-land holders and was pleased to set aside the decision of the Deputy Collector (Private Forest), Raigad Alibag dated 30th March 1998.

The Tribunal further declared that the land purchased by the Respondents herein which was the subject matter of the Writ Petition No.4869 of 1979 was not forest/private forest within the meaning of Maharashtra Private Forest (Acquisition) Act and does ::: Downloaded on - 09/06/2013 15:44:12 ::: 4 not vest in the State Government on appointed day i.e. on 30th August 1975.

3. The Respondents claimed to have purchased agricultural lands bearing Survey Nos.48, 37, 43, 32, 23, 31, 28 and 12/2 total aggregating to H R 109-61-30 situated at village Vajapur, Tal. Panvel, District Raigad. The Appropriate Authority declared that the land admeasuring H.R. 101-95-12, out of the aforesaid land, belonging to Shri S B Patankar and his family of village Vajapur Tal.Panvel, Dist.Raigad is private forest land which according to him had vested in Government on the appointed day i.e. 30th August 1975. That decision proceeded on the premiss that the notice was issued on 20th August 1958 under Section 35(3) Indian Forest Act 1927. According to the Authority, therefore, after enactment of the Maharashtra Private Forests (Acquisition) Act, 1975, [hereinafter referred to as "Maharashtra Act of 1975], the disputed land which was subject matter of the said notice automatically vested in State Government being private forest land. That was the consequence on account of Section 3 read with ::: Downloaded on - 09/06/2013 15:44:12 ::: 5 Section 2(f)(iii) of the Maharashtra Act of 1975. Accordingly Appropriate Authority initiated enquiry initially under the provisions of Land Revenue Code. The said action was challenged by the land owners, which proceedings culminated with the decision of the Apex Court dated 4th November 1997 in Civil Appeal No.7532 of 1997. The said order reads thus :-

"Taken on Board.
Leave granted.
The impugned order of the High Court disposing of the writ petition and giving certain directions does not contain any reasons for the conclusion reached therein. Learned counsel for the respondents submitted that the reasons for the order of the High Court are contained in Para-3 thereof. We find nothing therein which can be construed as a reason for the conclusion reached in the order or the direction given therein. The impugned order of the High Court is, therefore, set aside. The matter is remitted to the High Court for deciding the writ petition afresh on merits after hearing both sides by a detailed order ::: Downloaded on - 09/06/2013 15:44:12 ::: 6 mentioning the points for determination and the reasons for the conclusion reached therein.
The appeal is allowed in these terms."

As a consequence of the above order, Writ Petition No.4869 of 1997 came up for hearing on 30th November 1998 when the following minutes of order was passed :-

"1 By order dated 30th September 1997 being Ex.`T' to the petition, the Respondents no.1 State of Maharashtra through the Respondent no.3 have taken physical possession of the whole of the subject property of the present petition being land admeasuring about 61.21.47 Hectores corresponding and equivalent to 156.11 acres along with the structures standing thereon lying, situate and being at Village Wajapur, Taluka Panvel, District Raigad. The Respondents have since been looking after the said property. It is now agreed that pending the hearing and final disposal of the present Writ Petition the petitioners are being handed over the said property for the limited purpose of up keep ::: Downloaded on - 09/06/2013 15:44:12 ::: 7 and maintenance as more particularly mentioned in paragraph 2 hereinbelow mentioned. The dejura and legal possession of the said property however will always be with and remain with the State of Maharashtra, the Respondent No.1 and will be subject to the final orders passed in this Writ Petition. The Respondents will prior to handing over the said property to the Petitioners, remove their seals and unseal all the structures situated on the said property which came to be sealed by the Respondents.

2 The Petitioners will use and occupy the said property by themselves and their members. The Petitioners will look after the up-keep and maintenance of the said property at their own costs, charges and expenses and also pay and discharge all the statutory dues pertaining thereto from time to time. The Petitioners will however not seek any reimbursement of the said expenses and/or other expenses incurred by them on the said property from the Respondents.

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3 The Petitioners will not encumber the said property nor create any third party rights in respect thereof in any manner. The Petitioners and/or its members will also not induct any third party into the said premises. Without prejudice to the rights and contentions of the parties, the petitioners during the pendency of the present Writ Petition will not carry out any non forestry activity and/or use in the said land and structures. Petitioners will however be allowed entitled to plan trees on the said property by informing about the same to the Respondent No.2 and/or the concerned authorities from time to time, and in accordance with law at their risk and costs.

4 The Deputy Collector (Pvt. Forest) Alibaug has passed an order dated 30th day of March, 1998 in the enquiry No.1 of 1997 in respect of the said property under Section 6 of the Maharashtra Private Forest (Acquisition) Act of 1975. Petitioners have filed the appeal being Appeal No.2 of 1998 against the said order dated 30th March 1998 in the Court of the Maharashtra Revenue Tribunal which appeal is pending. Parties to the said Appeal ::: Downloaded on - 09/06/2013 15:44:12 ::: 9 will be entitled to such further legal proceedings as may be available to them under the law in force from time to time against any order that may be passed by the Tribunal in the said appeal No.2 of 1998. The parties are also at liberty to approach this Hon'ble Court for further orders as and when found necessary.

5 This order is passed pending the writ petition herein and is without prejudice to the rights and contentions of the parties being an interim arrangement."

4. In terms of the above minutes of order, the matter proceeded before the Collector Riagad Alibag for holding an enquiry under Section 6 of the Maharashtra Act of 1975. The Deputy Collector (Private Forest) Raigad Alibag, after giving an opportunity to the Respondents, took a view that except land admeasuring H.R. 4-32-8, remaining land would vest in State Government. Consistent with the said opinion, he proceeded to pass the following order :-

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"(1) Land measuring H.R. 4-32-8 as shown below is released from acquisition as the land was under lawful cultivation as per Panchanama.
                         Gat No.                   Area(H.R.)




                                                 
                         5E/1                      1-08-0
                         5F/3                      0-24-3
                         5C/1                      0-60-5




                                      
                         5B/1                      2-40-0
                         ig                        _______
                                                   4-32-8
                       
                  (2)    It   is   hereby   declared   that   an   area 
measuring H.R. 101-95-12 out of the above suit land being forest is a private Forest land and standing vests in Govt. on the appointed day i.e. 30/8/1975
5. Against this decision, the Respondents-land owners carried the matter before the Maharashtra Revenue Tribunal by way of Rev. Forest 2 of 1998. The Maharashtra Revenue Tribunal, as stated above, allowed the appeal preferred by the Respondents and passed the following operative order :-
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"The appeal filed by the appellants is hereby allowed.
The impugned judgment and order dated 30-3-98 is quashed and set aside It is declared that the land purchased by the appellants which is the subject matter of the Writ Petition No.4869 of 1979 is not forest/private forest within the meaning of Maharashtra Private Forest (Acquisition) Act and does not vest in the State Government on appointed day i.e. on 30-8-1975.
No order as to costs."
6. The Maharashtra Revenue Tribunal held that the authority failed to establish the factum of service of notices on the land owners. Besides, in the purported notices, the authority has not referred to the survey numbers in question. The tribunal further opined that the disputed land was not a private forest land.
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7. On the above basis, the tribunal proceeded to allow the appeal preferred by the Respondents. This decision is subject matter of challenge in the present writ petition.

8. The learned Government Pleader submits that the basis on which the tribunal has proceeded is unsustainable and more so cannot be countenanced after the authoritative pronouncement of the Apex Court in the case of Chintamani Gajanan Velkar v/s. State of Maharashtra and others reported in (2000) 3 SCC 143.

According to the learned Government Pleader as per the dictum of the Apex Court in this decision, it is enough to point out that notice under Section 35(3) of the Forest Act was in fact issued prior to the appointed day and once that fact is accepted it would necessarily follow that the land referred to in the notice would vest in State Government by virtue of Section 3 read with Section 2(f)

(iii) of the Maharashtra Act of 1975. In the present case, the record establishes that such notices under Section 35(3) were issued as back as in the year 1958 which is well before the ::: Downloaded on - 09/06/2013 15:44:12 ::: 13 appointed day. i.e. 30th August 1975. More over the assumption of the tribunal that the lands in question are not referred to in the said notices is an error apparent on the face of record, as specific reference to the said lands is found in the said notices. It was argued that the basis on which the Tribunal answered the issue in favour of the Respondents about non-establishing the factum of service of notices was unsustainable and an error apparent on the face of record.

9. As aforesaid none appeared for the Respondents to counter the above contentions.

10. Having gone through the material produced on record along with the writ petition with the assistance of the learned Government Pleader we have no hesitation to accept the argument of the Petitioners that the fact that notices ascribable to Section 35(3) of the Forest Act were issued before the appointed day, has been established from the record. On perusal of the notices which are at page Nos.32 to 69 of the paper book, it is amply clear that ::: Downloaded on - 09/06/2013 15:44:12 ::: 14 the lands (corresponding old Survey numbers before the consolidation scheme of 1997), which are subject matter of this petition, have been referred to in the said notices. The fact that the said notices were actually served on the Respondents or not is of no consequence. That is the legal position expounded by the Apex Court in the Chitanmani's case (Supra). The Apex Court has considered the efficacy of Section 2(f)(iii) of the Maharashtra Act of 1975 in contradistinction to the regime to be observed for issuance of notification under Section 35(1) of the Act. The Apex Court in Para-18 has observed that in so far as the cases covered by Section 2(f)(iii) of the Maharashtra Act of 1975, mere issuance of notice is sufficient to ignite the vesting of the land referred to in such notice issued under Section 35(3) of the Forest Act of 1927, before the appointed date viz. 30th August 1975. However vesting of the land would be except an area of 2 hectares out of the forest land held by the land holder. The Apex Court has observed that, that was the consideration for not allowing the benefit of an inquiry under Section 35(3) of the Central Act.

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In Para-19, the Apex Court has restated the same position in the following words :-

"In our view, the legislature has not made any discrimination in regard to the matters where notification had been issued under Section 35(1) of the Forest Act, 1927 on one hand and in cases where notification had not been issued and the matter stood still at the stage of notice under Section 35(3) on the other. In the latter cases, the legislature thought it fit to exclude 2 hectares of the landholder from vesting. If that was done, a notice that was issued before the appointed day i.e. 30-8-1975 the land would vest in the State subject, of course that the Collector has to specify the particular extent of 2 hectares which can be retained by the landholder. There is no need for any service of such notice before 30-8-1975, nor for an inquiry nor for a notification under Section 35(1)."

11. Considering the above, the basis on which the tribunal proceeded to answer the issue in favour of the Respondents cannot ::: Downloaded on - 09/06/2013 15:44:12 ::: 16 be countenanced. As aforesaid, the notices ascribable to Section 35(3) of the Forest Act, 1927, have in fact been issued before the appointed date. This position is indisputable. The fact that the said notices were not served on the Respondents or the landholders or they were not heard in the matter does not take the matter any further. For, on issuance of such notices under Section 35(3) of the Forest Act, 1927 before the appointed day on account of the legal fiction, the concerned lands referred to in such notices would vest in State Government except by excluding 2 hectares out of the said forest lands held by the landholders at the relevant time. Accordingly, the impugned decision of the tribunal cannot be sustained and the same deserves to be set aside.

12. Although the Petitioners would succeed in setting aside the impugned decision of the tribunal, in our view, it would be necessary to correct the error committed by the Deputy Collector (Private Forest), Raigad Alibag in his decision dated 30th March 1998, which error is directly in the teeth of the mandate of Section 2(f)(iii) of the Act. Section 2(f)(iii) which defines private forest.

::: Downloaded on - 09/06/2013 15:44:12 ::: 17

The same reads thus :-

"2. In this Act, unless the context otherwise requires,-----
(f) "private forest" means any forest which is not the property to Government and includes, ------
(iii) any land in respect of which a notice has been issued under sub-section (3) of Section 35 of the Forest Act, but excluding an area not exceeding two hectares in extent as the Collector may specify in this behalf;"

On plain language of this provision, the entire lands referred to in the notice under Section 35(3) would vest in State Government except an area not exceeding 2 (two) hectares held by the land owners/land holders at the relevant time from and out of the lands referred to in such notice. Whereas, the Deputy Collector in his decision dated 30th March 1998, has further proceeded to declare that the land admeasuring H.R. 4-32-8 out of the total holding of the Respondents to the extent of H.R.109-61-30 was released from acquisition. That order is obviously in excess of jurisdiction and manifestly wrong. Even if We were to give benefit of subsection ::: Downloaded on - 09/06/2013 15:44:12 ::: 18 (2) of Section 3 of the Maharashtra Act of 1975 to the Respondents, the question of releasing the land in excess of 2 hectares held by the land owners at the relevant time does not arise. At best, the land owners can be permitted to cultivate the lands not in excess of ceiling area provided by Section 5 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.

At the same time, by virtue of Subsection (3) of Section 3 of the Maharashtra Act of 1975 all private forests vested in State Government by virtue of subsection (1) of Section 3 shall be deemed to be reserved forests within the meaning of the Forests Act. However, in stead of expressing any final opinion in this behalf, we propose to not only set aside the impugned order of the tribunal but also the operative order of the Deputy Collector (Private Forest) Raigad Alibag in particular clause (1) thereof and relegate the Respondents before the Deputy Collector for re-

consideration on the limited issue as to the extent of land to be excluded which however cannot exceed two hectares in area to be retained by the land holders. That question will have to be decided afresh keeping in mind the outer limit specified in Sections 2(f) ::: Downloaded on - 09/06/2013 15:44:12 ::: 19

(iii) and 3(2) of the Maharashtra Act of 1975. All questions in that behalf will have to be decided on its own merits. That be done as expeditiously as possible and in any case within a period of three months from today.

13. We however uphold the declaration in terms of clause (2) of the operative order of the Deputy Collector (Private Forest) Raigad Alibag in his decision dated 30th March 1998

14. The Petition succeeds in the above terms with no order as to costs.

15. In view of this decision, nothing survives for consideration in the Civil Application Nos.2281 of 2003 and 1824 of 2008 and the same are also disposed of accordingly.

     (R M SAVANT, J.)                                  (A M KHANWILKAR, J)

                                                        




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