Full Judgment Text
-: 1 :-
2006:BHC-AS:6678-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3356 OF 2001
Feroz Shabbar Hussain, aged )
Adult, Landlord, residing at )
Gulmohar Apartments, Flat No. )
205, Second Floor, Hamid Mulla )
Road, (New Uran Road), Panvel, )
District Raigad, for himself and)
as the only son and legal )
representative of late Rabbabai )
Shabbar Hussain, who expired on )
22-1-1997. ... ... )... Petitioner.
Versus
1) The State of Maharashtra )
2) The Sub-Divisional Officer, )
Panvel, District Raigad. )
3) The Deputy Conservator or )
Forests, Alibag, District )
Raigad. .. ... )... Respondents.
Mr. G. V. Limaye for the Petitioner.
Mr. S.R.Nargolkar, AGP for the Respondents.
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CORAM : V.G. PALSHIKAR, and CORAM : V.G. PALSHIKAR, and CORAM : V.G. PALSHIKAR, and
V.R.KINGAONKAR, JJ. V.R.KINGAONKAR, JJ. V.R.KINGAONKAR, JJ.
DATED : 29TH MARCH, 2006. DATED : 29TH MARCH, 2006. DATED : 29TH MARCH, 2006.
JUDGMENT (Per : V.R.KINGAONKAR, J.): JUDGMENT (Per : V.R.KINGAONKAR, J.): JUDGMENT (Per : V.R.KINGAONKAR, J.):
By this petition, the Petitioner impugns the
order dated 4th October, 2005 passed by the Minister
for Revenue and Forests as a Revisional Authority
under Section 18 of the Maharashtra Private Forests
(Acquisition) Act, 1975 (for short "M.P.F. Act").
The Petitioner also seeks prohibitory injunction
restraining Respondents to dispossess him from the
agricultural land bearing Gat No. 46/1, admeasuring 2
Hectares 96 Ares situated at Village Barwai, Tal.
Panvel, Dist. Raigad.
2. The land in question was originally held by one
Narayan Govind Shete and bore survey No. 27, Hissa
No.4. On 24th January, 1961 a notice under Section
35(3) of the Indian Forests Act was issued and the
landlord was called upon to show cause as to why the
land be no declared as a private forest. The
Petitioner claims to be legal representative of
deceased Smt. Rubbabai Shabbar Hussein, who had
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acquired the land in question from the original
holder, namely, Narayan Govind Shete. An application
was submitted for grant of licence to extract
stone/rubble/murum from a natural quarry available in
the said land. The licence was issued but later on
cancelled.
3. The Petitioner and Smt. Rubbabai, predecessor in
title of the Petitioner, had preferred a writ petition
(Writ Petition No.309 of 1982) challenging the order
of cancelling licence for quarrying in the said land.
The petition was, however, dismissed on 4th September,
1990. Thereafter an application was filed on 11th
March, 1991 before the Sub-Divisional Officer / Deputy
Collector, Panvel to start inquiry under Section 22-A,
suo motu and to release the land from declaration as
forest land. The Sub-Divisional Officer / Dy.
Collector, Panvel, granted the application and held
that though notice under Section 35 (3) of the Forests
Act was issued, yet Notification under Section 35(1)
of the Forests Act was not issued and therefore the
land could not be treated as private forest.
Consequently, the Sub-Divisional Officer / Deputy
Collector, Panvel, held that there was no need to
proceed under Section 22-A of the Maharashtra Private
Forests (Acquisition) Act, 1975. It was declared that
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the Petitioner was free to enjoy the land in question.
4. Feeling aggrieved, a revision petition was
preferred by Respondent No.2. The revision petition
came to be allowed by order dated 4th October, 2000
passed by the Minister for Forests. It is this order,
which is subject matter of the challenge in the
present petition.
5. According to the petitioner, previous Writ
Petition No. 309 of 1982 was dismissed on technical
ground and it was only regarding the permission for
use of the land for quarrying, which was revoked on
23rd December, 1981. The Petitioner has no other
source of income and depend upon the income derived
from the stones quarry. The land in question was not
used as a forest and could not be declared as such.
The declaration of private forest ought to have been
made within a period of one year after the notice but
the same was not done and as such the land in question
cannot be treated as a private forest. It is further
contended that Respondent No.3 failed to prefer any
appeal against the order of the Sub-Divisional Officer
/ Deputy Collector, Panvel, and as such the order
dated 20th June, 1994 became final. The impugned
order is, therefore, bad-in-law and deserves to be set
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aside.
6. We have heard learned Counsel for the parties and
have perused the relevant documents available on
record. There is no dispute about the fact that a
notice under Section 35(3) of the Forests Act was
issued on 24th January, 1961. It appears that the
previous owner, namely, Shri Narayan Govind Shete was
duly served with the copy of the said notice on 17th
March, 1961.
7. Learned Counsel, Shri Limaye, submits that the
definition of expression "private forest" as envisaged
under Section 2(f)(iii) of the Maharashtra Private
Forests (Acquisition) Act, 1975 is not properly
considered by the Honourable Minister for Forests and
as such the impugned order is bad-in-law. He further
argued that when there was no appeal preferred by
Respondent No.2, the revision should not have been
entertained by the Honourable Minister. He further
contended that the Notification under Section 35(1) of
the Forests Act has not been issued and as such the
land in question cannot be treated as a private
forest. Lastly, it is urged that atleast 2 Hectares
land should have been excluded from the declaration
made under the impugned order. On the other hand, the
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leaned Additional Government Pleader, Shri Nargolkar,
has supported the impugned order.
8. The revision application was moved by Respondent
No.3 under Section 18 of the Maharashtra Private
Forests (Acquisition) Act, 1975 on 14th June, 1995.
This application was filed within one year from the
date of order passed by the Sub-Divisional Officer /
Dy. Collector, Panvel. The powers of revision under
Section 18 are available to the Government. In the
present case, there appears no illegality committed by
the Honourable Minister, while entertaining the
revision petition under Section 18. The revision is
not barred if appeal is not preferred.
9. The order passed by the Sub-Divisional Officer /
Deputy Collector, Panvel, would show that due to
absence of Notification under Section 35(1) of the
Forests Act it was declared that the land in question
cannot be treated as private forest. This approach of
the Sub-Divisional Officer / Deputy Collector, Panvel,
is itself incorrect. This Court in the case of Ankush Ankush Ankush
Keshav Bowledkar v/s State of Maharashtra Keshav Bowledkar v/s State of Maharashtra [1998 (3) Keshav Bowledkar v/s State of Maharashtra
Mah. L.J. 776, has held that if a notice has been
issued under Section 35(3) of the Indian Forest Act,
1927 in respect of any land prior to coming into force
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of the Maharashtra Private Forests (Acquisition) Act,
1975 on 30th August, 1975 such land in respect of
which a notice has been issued becomes private forest
under Section 2(f) of the Maharashtra Private Forests
(Acquisition) Act, 1975. It is further held that the
crucial and relevant aspect is issuance of notice
under Section 35(3) of the Forests Act and not its
service. So also, in the case of Chintamani Gajanan Chintamani Gajanan Chintamani Gajanan
Velkar v/s State of Maharashtra Velkar v/s State of Maharashtra, AIR 2000 SC 1073, it Velkar v/s State of Maharashtra
is laid down that if notice is issued under Section
35(3) of the Forests Act prior to the appointed date
i.e. 30th August, 1975 then the land will have to be
regarded as "private forest". Needless to say the
absence of notification under Section 35(1) of the
Forests Act could not be treated as a ground to
declare the land in question as outside the definition
of expression "private forest" as was done by the
Sub-Divisional Officer / Deputy Collector, Panvel.
10. True, the part of the land in question is used
for quarrying purpose. We cannot overlook the fact,
however, that predecessor in title of the Petitioner,
namely, Smt. Rubbabai started using a portion of the
land for quarrying only somewhere in 1981. A part of
the land could be used for quarrying purpose only
after obtaining licence in 1981 but that will not
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change the nature of the land. The subsequent events
and change of user are immaterial once it is found
that notice under Section 35(3) of the Forests Act was
issued. We cannot overlook the fact that the original
holder of the land i.e. Narayan Govind Shete had
never challenged the notice at any point of time. The
Petitioner herein and Smt. Rubbabai Shabbar Hussain
filed an application dated 11th March, 1991 for
inquiry under Section 22-A and Section 6 of the
Maharashtra Private Forests (Acquisition) Act, 1975
(Exhibit "F"). The provisions of Section 6 only deals
with power of the Collector to decide the question
where the dispute arises as to whether or not any
forest is a private forest or whether or not any
private forest or portion thereof is vested in the
State Government. For restoration of forest land to
owner under certain circumstances resort can be taken
to Section 22-A of the Maharashtra Private Forests
(Acquisition) Act, 1975. Section 22-A(1) reads thus:
"22-A(1). Notwithstanding anything
contained in the foregoing provisions of
this Act, if, on an application made by any
owner of private forest, within a period of
six months from the date of commencement of
the Maharashtra Private Forests
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(Acquisition) (Amendment) Act, 1978, or suo
motu at any time, the Collector, after
holding such inquiry as he deems fit, is
satisfied that the total holding of land of
such owner became less than twelve hectares
on the appointed day on account of
acquisition of his forest land under this
Act or that the total holding of land of
such owner was already less than twelve
hectares on the day immediately preceding
the appointed day, the Collector shall
determine whether the whole of the forest
land acquired from such owner or what
portion thereof shall be restored to him,
so, however, that his total holding of land,
on the appointed day, shall not exceed
twelve hectares."
11. A plain reading of sub-clause (1) of Section 22-A
of the Forests Act makes it manifest that such
application has to be filed by an owner of private
forest within a period of six months from the date of
commencement of the Maharashtra Private Forests
(Acquisition) (Amendment) Act, 1978. The application
was not filed within a period of six months after the
commencement of the said Act but it was filed long
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thereafter on 11th March, 1991. Obviously such
application was barred by limitation and could not
have been entertained by the Sub-Divisional Officer /
Deputy Collector, Panvel. There is no prayer in the
application (Exhibit "F") to delete 2 hectares land as
provided under sub-clause (f)(iii) of Section 2 of the
Maharashtra Private Forests (Acquisition) Act, 1975.
The application (Exhibit "F") reveals that the
applicants, who were aware that the limitation for
filing of such application was over and the
application was time barred, therefore, had submitted
a lame excuse to the effect that their another
petition was pending before the High Court till 1990.
The pendency of such another petition (Writ Petition
No. 390 of 1982) had nothing to do with the inquiry
under Section 22-A in as much as it pertained only to
the extent of licence for quarrying in the land, which
was subsequently revoked. Under the circumstances,
the Revisional Authority has rightly held that when
the notice under Section 35(3) was issued much prior
to the commencement of the Maharashtra Private Forests
(Acquisition) Act, 1975 then the land did vest in the
Government as a private forest. The impugned order,
therefore, does not call for any interference.
12. In the result, we are inclined to hold that the
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land in question is a private forest and the impugned
order is quite sustainable. Hence, the petition is
dismissed. Rule discharged. There shall be no order
as to costs.
Sd/-
(V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.)
Sd/-
(V.R.KINGAONKAR, J.) (V.R.KINGAONKAR, J.) (V.R.KINGAONKAR, J.)
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2006:BHC-AS:6678-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3356 OF 2001
Feroz Shabbar Hussain, aged )
Adult, Landlord, residing at )
Gulmohar Apartments, Flat No. )
205, Second Floor, Hamid Mulla )
Road, (New Uran Road), Panvel, )
District Raigad, for himself and)
as the only son and legal )
representative of late Rabbabai )
Shabbar Hussain, who expired on )
22-1-1997. ... ... )... Petitioner.
Versus
1) The State of Maharashtra )
2) The Sub-Divisional Officer, )
Panvel, District Raigad. )
3) The Deputy Conservator or )
Forests, Alibag, District )
Raigad. .. ... )... Respondents.
Mr. G. V. Limaye for the Petitioner.
Mr. S.R.Nargolkar, AGP for the Respondents.
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CORAM : V.G. PALSHIKAR, and CORAM : V.G. PALSHIKAR, and CORAM : V.G. PALSHIKAR, and
V.R.KINGAONKAR, JJ. V.R.KINGAONKAR, JJ. V.R.KINGAONKAR, JJ.
DATED : 29TH MARCH, 2006. DATED : 29TH MARCH, 2006. DATED : 29TH MARCH, 2006.
JUDGMENT (Per : V.R.KINGAONKAR, J.): JUDGMENT (Per : V.R.KINGAONKAR, J.): JUDGMENT (Per : V.R.KINGAONKAR, J.):
By this petition, the Petitioner impugns the
order dated 4th October, 2005 passed by the Minister
for Revenue and Forests as a Revisional Authority
under Section 18 of the Maharashtra Private Forests
(Acquisition) Act, 1975 (for short "M.P.F. Act").
The Petitioner also seeks prohibitory injunction
restraining Respondents to dispossess him from the
agricultural land bearing Gat No. 46/1, admeasuring 2
Hectares 96 Ares situated at Village Barwai, Tal.
Panvel, Dist. Raigad.
2. The land in question was originally held by one
Narayan Govind Shete and bore survey No. 27, Hissa
No.4. On 24th January, 1961 a notice under Section
35(3) of the Indian Forests Act was issued and the
landlord was called upon to show cause as to why the
land be no declared as a private forest. The
Petitioner claims to be legal representative of
deceased Smt. Rubbabai Shabbar Hussein, who had
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acquired the land in question from the original
holder, namely, Narayan Govind Shete. An application
was submitted for grant of licence to extract
stone/rubble/murum from a natural quarry available in
the said land. The licence was issued but later on
cancelled.
3. The Petitioner and Smt. Rubbabai, predecessor in
title of the Petitioner, had preferred a writ petition
(Writ Petition No.309 of 1982) challenging the order
of cancelling licence for quarrying in the said land.
The petition was, however, dismissed on 4th September,
1990. Thereafter an application was filed on 11th
March, 1991 before the Sub-Divisional Officer / Deputy
Collector, Panvel to start inquiry under Section 22-A,
suo motu and to release the land from declaration as
forest land. The Sub-Divisional Officer / Dy.
Collector, Panvel, granted the application and held
that though notice under Section 35 (3) of the Forests
Act was issued, yet Notification under Section 35(1)
of the Forests Act was not issued and therefore the
land could not be treated as private forest.
Consequently, the Sub-Divisional Officer / Deputy
Collector, Panvel, held that there was no need to
proceed under Section 22-A of the Maharashtra Private
Forests (Acquisition) Act, 1975. It was declared that
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the Petitioner was free to enjoy the land in question.
4. Feeling aggrieved, a revision petition was
preferred by Respondent No.2. The revision petition
came to be allowed by order dated 4th October, 2000
passed by the Minister for Forests. It is this order,
which is subject matter of the challenge in the
present petition.
5. According to the petitioner, previous Writ
Petition No. 309 of 1982 was dismissed on technical
ground and it was only regarding the permission for
use of the land for quarrying, which was revoked on
23rd December, 1981. The Petitioner has no other
source of income and depend upon the income derived
from the stones quarry. The land in question was not
used as a forest and could not be declared as such.
The declaration of private forest ought to have been
made within a period of one year after the notice but
the same was not done and as such the land in question
cannot be treated as a private forest. It is further
contended that Respondent No.3 failed to prefer any
appeal against the order of the Sub-Divisional Officer
/ Deputy Collector, Panvel, and as such the order
dated 20th June, 1994 became final. The impugned
order is, therefore, bad-in-law and deserves to be set
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aside.
6. We have heard learned Counsel for the parties and
have perused the relevant documents available on
record. There is no dispute about the fact that a
notice under Section 35(3) of the Forests Act was
issued on 24th January, 1961. It appears that the
previous owner, namely, Shri Narayan Govind Shete was
duly served with the copy of the said notice on 17th
March, 1961.
7. Learned Counsel, Shri Limaye, submits that the
definition of expression "private forest" as envisaged
under Section 2(f)(iii) of the Maharashtra Private
Forests (Acquisition) Act, 1975 is not properly
considered by the Honourable Minister for Forests and
as such the impugned order is bad-in-law. He further
argued that when there was no appeal preferred by
Respondent No.2, the revision should not have been
entertained by the Honourable Minister. He further
contended that the Notification under Section 35(1) of
the Forests Act has not been issued and as such the
land in question cannot be treated as a private
forest. Lastly, it is urged that atleast 2 Hectares
land should have been excluded from the declaration
made under the impugned order. On the other hand, the
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leaned Additional Government Pleader, Shri Nargolkar,
has supported the impugned order.
8. The revision application was moved by Respondent
No.3 under Section 18 of the Maharashtra Private
Forests (Acquisition) Act, 1975 on 14th June, 1995.
This application was filed within one year from the
date of order passed by the Sub-Divisional Officer /
Dy. Collector, Panvel. The powers of revision under
Section 18 are available to the Government. In the
present case, there appears no illegality committed by
the Honourable Minister, while entertaining the
revision petition under Section 18. The revision is
not barred if appeal is not preferred.
9. The order passed by the Sub-Divisional Officer /
Deputy Collector, Panvel, would show that due to
absence of Notification under Section 35(1) of the
Forests Act it was declared that the land in question
cannot be treated as private forest. This approach of
the Sub-Divisional Officer / Deputy Collector, Panvel,
is itself incorrect. This Court in the case of Ankush Ankush Ankush
Keshav Bowledkar v/s State of Maharashtra Keshav Bowledkar v/s State of Maharashtra [1998 (3) Keshav Bowledkar v/s State of Maharashtra
Mah. L.J. 776, has held that if a notice has been
issued under Section 35(3) of the Indian Forest Act,
1927 in respect of any land prior to coming into force
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of the Maharashtra Private Forests (Acquisition) Act,
1975 on 30th August, 1975 such land in respect of
which a notice has been issued becomes private forest
under Section 2(f) of the Maharashtra Private Forests
(Acquisition) Act, 1975. It is further held that the
crucial and relevant aspect is issuance of notice
under Section 35(3) of the Forests Act and not its
service. So also, in the case of Chintamani Gajanan Chintamani Gajanan Chintamani Gajanan
Velkar v/s State of Maharashtra Velkar v/s State of Maharashtra, AIR 2000 SC 1073, it Velkar v/s State of Maharashtra
is laid down that if notice is issued under Section
35(3) of the Forests Act prior to the appointed date
i.e. 30th August, 1975 then the land will have to be
regarded as "private forest". Needless to say the
absence of notification under Section 35(1) of the
Forests Act could not be treated as a ground to
declare the land in question as outside the definition
of expression "private forest" as was done by the
Sub-Divisional Officer / Deputy Collector, Panvel.
10. True, the part of the land in question is used
for quarrying purpose. We cannot overlook the fact,
however, that predecessor in title of the Petitioner,
namely, Smt. Rubbabai started using a portion of the
land for quarrying only somewhere in 1981. A part of
the land could be used for quarrying purpose only
after obtaining licence in 1981 but that will not
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change the nature of the land. The subsequent events
and change of user are immaterial once it is found
that notice under Section 35(3) of the Forests Act was
issued. We cannot overlook the fact that the original
holder of the land i.e. Narayan Govind Shete had
never challenged the notice at any point of time. The
Petitioner herein and Smt. Rubbabai Shabbar Hussain
filed an application dated 11th March, 1991 for
inquiry under Section 22-A and Section 6 of the
Maharashtra Private Forests (Acquisition) Act, 1975
(Exhibit "F"). The provisions of Section 6 only deals
with power of the Collector to decide the question
where the dispute arises as to whether or not any
forest is a private forest or whether or not any
private forest or portion thereof is vested in the
State Government. For restoration of forest land to
owner under certain circumstances resort can be taken
to Section 22-A of the Maharashtra Private Forests
(Acquisition) Act, 1975. Section 22-A(1) reads thus:
"22-A(1). Notwithstanding anything
contained in the foregoing provisions of
this Act, if, on an application made by any
owner of private forest, within a period of
six months from the date of commencement of
the Maharashtra Private Forests
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(Acquisition) (Amendment) Act, 1978, or suo
motu at any time, the Collector, after
holding such inquiry as he deems fit, is
satisfied that the total holding of land of
such owner became less than twelve hectares
on the appointed day on account of
acquisition of his forest land under this
Act or that the total holding of land of
such owner was already less than twelve
hectares on the day immediately preceding
the appointed day, the Collector shall
determine whether the whole of the forest
land acquired from such owner or what
portion thereof shall be restored to him,
so, however, that his total holding of land,
on the appointed day, shall not exceed
twelve hectares."
11. A plain reading of sub-clause (1) of Section 22-A
of the Forests Act makes it manifest that such
application has to be filed by an owner of private
forest within a period of six months from the date of
commencement of the Maharashtra Private Forests
(Acquisition) (Amendment) Act, 1978. The application
was not filed within a period of six months after the
commencement of the said Act but it was filed long
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thereafter on 11th March, 1991. Obviously such
application was barred by limitation and could not
have been entertained by the Sub-Divisional Officer /
Deputy Collector, Panvel. There is no prayer in the
application (Exhibit "F") to delete 2 hectares land as
provided under sub-clause (f)(iii) of Section 2 of the
Maharashtra Private Forests (Acquisition) Act, 1975.
The application (Exhibit "F") reveals that the
applicants, who were aware that the limitation for
filing of such application was over and the
application was time barred, therefore, had submitted
a lame excuse to the effect that their another
petition was pending before the High Court till 1990.
The pendency of such another petition (Writ Petition
No. 390 of 1982) had nothing to do with the inquiry
under Section 22-A in as much as it pertained only to
the extent of licence for quarrying in the land, which
was subsequently revoked. Under the circumstances,
the Revisional Authority has rightly held that when
the notice under Section 35(3) was issued much prior
to the commencement of the Maharashtra Private Forests
(Acquisition) Act, 1975 then the land did vest in the
Government as a private forest. The impugned order,
therefore, does not call for any interference.
12. In the result, we are inclined to hold that the
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land in question is a private forest and the impugned
order is quite sustainable. Hence, the petition is
dismissed. Rule discharged. There shall be no order
as to costs.
Sd/-
(V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.)
Sd/-
(V.R.KINGAONKAR, J.) (V.R.KINGAONKAR, J.) (V.R.KINGAONKAR, J.)
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