1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8052/2003 WITH CIVIL APPLICATION NO.2643/2004 WITH CIVIL APPLICATION NO.2578/2007 Anil P.Kakad and Ors. Petitioners Vs. The State of Maharashtra & Ors. Respondents Mr.A.V.Anturkar i/b Mr.N.K.Mudnaney for the applicant Mr.Sonpal,AGP for Res.1 to 5 Mr.Nitin Deshpande,Adv.for Res.no.6 CORAM : J.N.PATEL & MRS.MRIDULA BHATKAR,JJ. DATED : 21st APRIL,2009 P.C. ( Mrs.Mridula Bhatkar,J.) 1] Heard. Rule. Respondents waive service. By consent heard forthwith. In this petition the issue whether the lands bearing survey nos.165,167 to 170 ,172 to 179 ,190 ,191 and 203 admeasuring 109 2 Hector ,95 ares are private forest or not and whether its acquisition under Maharashtra Private Forest (Acquisition) Act of 1975 ( for short Act of 1975) are legal and valid is agitated. 2] Civil Application no.2578/2007 is preferred for the modification of the order of status quo and to allow the applicant to develop the property. Civil Application 2643/2004 is preferred seeking relief that the petitioner be allowed to maintain safeguard and look after the petitioner' s farm house on the subject property . Thus,the reliefs claimed in both the civil applications are more or less the same; capsuled in different language. 3] In Writ Petition no.2890/2001 the High Court has issued interim directions on 10/10/2001 in respect of Section 6 of the Maharashtra Private Forest (Acquisition) Act,1975 by which the restrictions are put on the Collector while issuing certificate u/s 6 of the Act of obtaining prior approval of the Government u/s 2 of the Forest (Conservation) Act,1980 after the same came into force. Clarification of the said order was sought by C.A.No.40/2008 in PIL No.17/02 (Ori.W.P.no.2890/01). By order dated 15/9/2006 the Division Bench of this Court observed that as the PIL No.17/02 is finally disposed of by judgment and order dated 22/6/2005 the interim order do not survive. 3 4] The learned counsel for the petitioner has drawn our attention to the last paragraph and operative part of the order passed by the Collector dated 13/8/2002 which is a ground of challenge in the present Writ Petition. The learned counsel has submitted that the Collector has wrongly interpreted the interim order of the High Court holding that the powers of the Collector u/s 6 of the Acquisition Act of 1975 have come to an end due to section 2 of the Forest Conservation Act of 1980. Further he has submitted that though the Collector has given finding that these are agriculture lands he has directed the petitioner to obtain approval of M.O.E.F.u/s 2 of Forest (Conservation) Act ,1980. 5] The learned A.G.P. has submitted that the said order of the Collector on the point whether the lands are forest or not cannot be assailed as he has taken a view that the applicant should approach Central Government and obtain clearance in the matter. The learned A.G.P. further submitted that they have already taken the possession of the lands and till the petitioners obtain no objection as directed by the Collector they will maintain status quo. 6] On perusal of the impugned order dated 13/8/2002 passed by the Collector while dealing with the subject lands, he has arrived at contradictory finding of fact as regards the status of the lands in question. On the one hand he holds that considering the fact that the 4 lands were used for agriculture purpose it is clear that originally these lands are agricultural lands but then concludes by observing that taking into consideration the comprehensive definition of private forests given in Section 2(k)(1) of the Said Act of 1975 and the interim order of the High Court it cannot be ruled out that these lands are not 'forest lands', therefore, it will be proper that the applicant should obtain approval of Central Government u/s 2 of the Forest (Conservation) Act,1980. He then proceeded to pass the operative order holding that after coming into force of the Forest (Conservation) Act,1980 the power vested in the Collector u/s 6 of the Said Act of 1975 stands repealed and ,therefore,the petitioner should apply to Central Government and obtain no objection certificate u/s 2 of the Forest (Conservation) Act,1980. We find that the Collector has erred in holding that he has no powers u/s 6 to conduct an enquiry under the said Act of 1975 and the petitioner should obtain ' no objection' from Central Government. Moreover,the Collector has not properly construed the interim order of this High Court in Writ Petition 2980/2001. Thus, we are of the view that it will be appropriate to remand the matter to the Collector to decide this matter afresh after giving hearing to all the parties in accordance with the provisions of the Maharashtra Private Forests (Acquisition) Act ,1975. 7] The learned counsel for the petitioner has prayed that as the matter is remanded and the order of the Collector does not 5 survive the possession of the land taken over by the Collector should be handed over to the applicants/petitioners and the petitioners will maintain the status quo. The submissions of the learned counsel for the petitioners cannot be accepted as the possession of the land is already taken by the Government. But it is made clear that the parties will maintain stauts-quo in the matter till the application is finally decided. 8] Hence the matter is remanded to the Collector with directions to decide it afresh after giving hearing to all the parties on or before 31st July,2009 in accordance with law . C.A.No. 2643/2004 and 2578/2007 stand disposed of as infructuous. Rule is made absolute in the aforesaid terms with no order as to costs. (J. N. PATEL , J ) (MRIDULA BHATKAR, J) 6 para-6 :On perusal of the impugned order dated 13/8/2002 passed by the Collector while dealing with the subject ..... he has arrived at contradictory finding of fact as regards the status of the lands in question. On the other hand he holds that considering the fact that the lands were used for agriculture purpose it is clear that originally these lands are agricultural lands but then concludes by observing that taking into consideration the comprehensive definition of private forests given in Section 2(k)(1) of the Said Act of 1975 and ... ...... order of ..... High Court it cannot be ruled out that these lands are not 'forest lands' , therefore, it will be proper that the applicant should obtain approval of Central Government u/s 2 of the Forest (Conservation) Act,1980. He 7 then proceeded to pass the operative order holding that after coming into force of the Forest (Conservation) Act,1980 the power vested in the Collector u/s 6 of the Said Act of 1975 stands repeated and ,therefore,the petitioner should apply to Central Government and obtain no objection certificate u/s 2 of the Forest (Conservation) Act,1980. We find that the Collector has erred inholding that he has no powers u/s 6 to conduct an enquiry under the said Act of 1975 and the petitioner should obtain 'no objection' from Central Government.