vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3363 OF 1990 WRIT PETITION NO.3363 OF 1990 WRIT PETITION NO.3363 OF 1990 Narayan Mahadu Bhokate since deceased by his LRs Maruti Narayan Bhokate & Ors. ... Petitioners V/s. State of Maharashtra ... Respondent Mr.Arvind J. Joshi for Petitioners Mr.Asif Patel, AGP, for Respondent Nos.1 to 4 Mr.Vijay Gharat for Resp. Nos.5 to 9 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: DECEMBER 8, 2008 DECEMBER 8, 2008 DECEMBER 8, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . The petition has been filed in order to challenge the order passed by the Additional Commissioner in April 1990. By this order, the revision filed by the Deputy Conservator of Forests, Alibag, District Raigad has been allowed. 2. One Mahadu Rama Bhokate held agricultural land admeasuring 20 hectares and one are in village Chevane, Taluka Karjat. He expired on 25.12.1938. His mother Sakunabai, his wife Tulabai and two minor sons Narayan and Shankar were his heirs. A mutation entry was recorded in the name of Narayan by his mother Tulabai on 25.12.1938. At the request of Tulabai, the name of Sakunabai was also entered on 21.3.1940. According to : 2 : the petitioners, the property in question is a co-parcenery property and Narayan who was the original petitioner No.1 is not the sole owner of the property. 3. A family arrangement was arrived at on 7.9.1974, partitioning the property by metes and bounds. Thus, Narayan, his brother Shankar and son Maruti were put in physical possession of the lands allotted to their respective shares. As a result the land held by each of them was less then 12 hectares. The Revenue department recorded mutation entry No.601 on 7.11.1980 giving effect to the partition. 4. The Deputy Conservator of Forests has by his letter to the Deputy Collector on 5.3.1988 sought a clarification as to whether permission could be granted to the petitioners to fell trees on the land in question. This clarification was sought in view of the provisions of the Maharashtra Private Forests (Acquisition) Act, 1975. An order was passed by the Assistant Collector, Panvel on 16.2.1989 to the effect that Narayan and Tulabai each held 12 hectares of land. Consequently, an order returning 18 hectares of land to the owner was passed. Permission for felling trees was therefore granted as the petitioners are tribals. 5. The Deputy Conservator of Forests filed a : 3 : revision application u/s 22A of the Forests Act before the Additional Commissioner, Konkan Division. This authority held that the partition effected on 7.9.1974 could not be considered as the mutation entries were effected in the revenue records on 12.11.1980 much after the Forests Act came into force. The Additional Commissioner therefore was of the view that Narayan held more than 12 hectors of land and therefore that land vested in the government as forest land. 6. The petitioners have also filed an application u/s 6 of the Act contending that certain lands which have vested in the Government are in fact agricultural lands and therefore do not fall within the purview of the Forests Act. This application is pending decision with the State Government. 7. Since the controversy in this case hinges on whether a partition had taken place in 1974, the petitioners were directed to produce the deed of partition. By an order dated 26.8.2008, the Tehsildar, Karjat was directed to send the entire record to this Court. An affidavit has been filed by Shankar Kalu Popte in this Court, claiming that he was one of the panchas before whom the deed of partition was effected. He has identified the signatures of Narayan, Shankar and Maruti. : 4 : 8. Since this document was not before the Additional Commissioner, it would be appropriate to remand the matter to the Additional Commissioner for him to consider the effect the deed of partition dated 7.9.1974. This partition has admittedly taken place prior to the Act coming into force and, therefore, would have some bearing on the result of this case. If the deed of partition is accepted, then admittedly the holding of Narayan would not be in excess of 12 hectares which is the stipulated limit under the Forests Act. 9. The petition is therefore, allowed. The matter is remitted back to the SDO/Assistant Collector to decide the application filed by the petitioner and whether the petitioners are entitled to retain the forest land upto 12 hectares each. This authority will also consider the petitioner’s application filed in 1993 u/s 6 of the Forests Act. Both these applications to be decided within six months from today. The original of the deed of partition to be sent to the SDO/Assistant Collector alongwith the writ of this Court. 10. Rule made absolute. No costs. 11. In view of the disposal of the writ petition, the Civil Application No.981 of 2003 is dismissed as : 5 : infructuous.