*1* wp.1177.1178.11.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1177 OF 2011 Nilang A. Desai. ..Petitioner -Versus- State of Maharashtra and others. ..Respondents .......... Mr.V.R.Dhond a/w Mr.Vishal Kanade i/b Negandhi, Shah & Himayatullah, for the Petitioner. Mr.Vijay D. Patil, Government Pleader, with Mr.V.P.Malvankar, “A” Panel Counsel, for the Respondent Nos.1, 3 and 4. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 19th July, 2011. P.C.: 1 Rule. Respondents waive service. Heard forthwith by consent. 2 This Writ Petition under Articles 226 and 227 of the Constitution of India is directed against the order passed on 12.04.2010 by the Maharashtra Revenue Tribunal dismissing the Review Petitions which were preferred by the present Petitioner seeking review of the common judgment delivered on 16.12.2008 passed in Appeal No.5- A/2000 and other appeals. 3 The proceedings are under the Maharashtra Private Forests (Acquisition) Act, 1975 (for short, the Private Forests Act). The Petitioner is an Indian citizen and residing at the address mentioned in cause title of *2* wp.1177.1178.11.sxw the petition. He claims to be owner and in possession of the lands in village Devtalai, Taluka : Alibag being Survey No.7, Hissa No.0 of Plot Nos.7 and 8. It is the case of the Petitioner that he acquired the said lands which are agricultural with the permission of the appropriate authority along with some other lands as Chief Promoter of the Horticulture Co- operative Society. It is the case of the Petitioner that these lands were originally owned by one Madhusudan Valenkar. He sold the said lands by a registered deed of conveyance dated 18.12.1962 to one Yeshwant Shripad Randive. It is the case of the Petitioner that a notice under Setion 35(3) of the Indian Forest Act, 1927 was allegedly issued in respect of the said lands to Yeshwant Randive. While disputing the issuance of such notice, it is contended that on 11.11.1965, Yeshwant Randive sold the said lands to Himmatlal V. Gandhi, Taher Dawoodkhan Tayabjee and Suresh K. Desai. The said Suresh Desai expired on 31.12.1974, but by virtue of a Will, his interest in the lands devolved upon his wife. The said Desai had no legal heirs. The widow of Desai expired in or around 1983 leaving behind a Will by which her interest in the lands devolved upon her nephew i.e. the Petitioner (Nilang A. Desai). 4 It is not disputed that the Private Forests Act came into effect from 30.08.1975. It is alleged that the possession of the said lands was allegedly taken by the Forest Department on 17.02.1977, but this fact is seriously disputed as the Petitioner claims to be in physical possession of the said lands. According to the Petitioner, a letter dated 07.03.1980 was addressed by the Revenue & Forest Department to the Chief Conservator of Forests calling upon him to take possession of the reserved forests. It is then contended that on 07.06.1988, the said T.D.Tayabjee sold his 1/3rd share of lands to the Petitioner in his capacity as the Chief Promoter of *3* wp.1177.1178.11.sxw Devtalai Horticulture Co-operative Society. It is then contended that Survey Nos.7 to 11 were divided into plots under the orders of the Sub- Divisional Officer which were passed on 07.08.1993 and 07.10.1994. On 03.10.1997 the Deputy Conservator of Forest issued a notice to the Petitioner under Sections 53, 54 and 54-A of the Maharashtra Land Revenue Code, 1966 calling upon him to show cause why eviction proceedings should not be taken in respect of the said lands. In response to the said notice, an Advocate appeared on behalf of the Petitioner and sought inspection of 7/12 extracts and other relevant documents. It is stated that the proceedings were adjourned from time to time and subsequently, the Deputy Conservator of Forest passed an order on 03.12.1997 holding that the plot of land acquired by the Petitioner is forest and directed the Range Forest Officer to take possession of the Petitioner’s lands. It is alleged that this order is passed without furnishing any documents relied upon by the Department and without hearing the Petitioner. 5 In such circumstances, the Petitioner filed Writ Petition in this Court being Writ Petition No.324/1998 challenging the show cause notice dated 03.10.1997. The Petitioner while impugning the order dated 03.12.1997 also sought inquiry under Section 6 of the Private Forests Act insofar as the said lands are concerned. The Petitioner also challenged the vires of Section 2(c-i) and 2(f) of the Private Forest Act. This Writ Petition is pending. 6 Thereafter, the Petitioner claims that he came across a circular dated 30.01.1978. The said circular was issued in response to a large number of complaints by persons whose lands despite being under *4* wp.1177.1178.11.sxw lawful cultivation on the relevant date were wrongly considered as forest lands and the Government found some merit in some of complaints, therefore, an inquiry was directed to be held in such matters so as to ascertain whether there was any cultivation or not. The Village Committee came to be formed in terms of the said circular. The Petitioner has relied upon the Village Committee report which, according to him, confirms that the lands were under lawful cultivation as on the appointed date. In such circumstances, Civil Application was filed being Civil Application No. 9061/1998 in the said pending Writ Petition. That Civil Application was placed before a Division Bench of this Court which passed an order on 08.10.1998, by consent, directing that the Sub-Divisional Officer should act in terms of the said circular. The Petitioner, therefore, approached the Sub-Divisional Officer, but he refused to release the lands and passed an order on 31.10.1998. In these circumstances, another Civil Application was taken out, being Civil Application (stamp) No.39619/1998 for challenging the said order dated 31.10.1998 and both these Civil Applications were in the said pending Writ Petition. An order came to be passed by this Court, by consent, on 30.11.1998 directing the Collector to conduct an inquiry under Section 6 of the Private Forests Act. The Civil Application came to be disposed of. 7 In such circumstances the Respondent No.3-Collector initiated the inquiry under Section 6 of the Private Forests Act and concluded the same by an order dated 11.10.1999. He held that except for land admeasuring about 0-02-0 hectors on which a house was constructed, all other lands have been lawfully taken under possession by the Forest Department and therefore, they vested in the State as reserved forest. *5* wp.1177.1178.11.sxw 8 Aggrieved and dissatisfied by this order, an Appeal No. 5A/2000 was filed in the Maharashtra Revenue Tribunal under Section 13 of the Private Forest Act. This appeal was heard by the learned Member of the Maharashtra Revenue Tribunal and by the judgment and order dated 16.12.2008, the same was dismissed. 9 The Petitioner sought review of the said order on the basis that it is vitiated by an error apparent on the face of record. It is that the learned Member did not advert to the contentions as to whether, the Petitioner’s lands were under lawful cultivation on the appointed date and whether, the entire land should be excluded from acquisition or the order passed by the Collector insofar as excluding 0-02-0 hectors is correct or not. According to the Petitioner, this aspect was not considered and therefore, the order passed by the Tribunal is vitiated by an error apparent on the face of record. Contending thus, the review application had been filed and even that review application has been dismissed by an order dated 12.04.2010. Thus, aggrieved and dissatisfied with the order of the Collector passed on 11.10.1999 and that of the Tribunal dated 16.12.2008 and 12.04.2010, that this Writ Petition under Articles 226 and 227 of the Constitution of India has been filed. 10 Mr.Dhond, learned counsel appearing for the Petitioner, submitted that the order of the Tribunal is vitiated by an error apparent on the face of record. The Tribunal was called upon to decide as to whether, the review of its earlier order is necessitated or not. Mr.Dhond submits that the order under review delivered on 16.12.2008 was vitiated by a obvious error inasmuch as the Tribunal at internal page 16 of its *6* wp.1177.1178.11.sxw order dated 16.12.2008 has observed that the entires in the record of rights show natural grown grass in the land and do not support the case of cultivation and therefore, the Collector did not accept the claim of the Petitioner’s cultivation, though the Village Level Committee and the Panchanama mention that some portion of the land is under cultivation. Mr.Dhond submits that if this was a finding in the report and on the basis of which the Petitioner argued that the limited exclusion of only 0-02-0 hectors is contrary to clear language of Section 3(2) of the Private Forests Act, then, this obvious and apparent error ought to have been corrected by excluding the entire land and holding it to be in lawful cultivation of the Petitioner. If these are contents of the report and if the report is not even referred to in the order, then, the review was necessitated and the Tribunal erred in dismissing the review application. Mr.Dhond complains that in the garb of deciding the review application, the Tribunal purported to give additional reasons for dismissing the Petitioner’s appeal. The additional reasons are also vitiated by an error apparent on the face of record and non application of mind. Mr.Dhond submits that in the written submissions that have been filed on behalf of the Deputy Conservator of Forest, it was contended that the Village Team report referred to by the Petitioner, does not bear the signature of the Range Forest Officer/Forester as required by the Government circular dated 30.01.1978 and the Panchanama dated 03.01.1979 accompanying the report is also without signatures of the Forest Officer. Terming this as a piece of paper, the Deputy Conservator of Forest contended that no case for review was made out. Mr.Dhond invites my attention to paragraph-10 of the order passed on review application by the Tribunal and submits that the learned President accepts the error in paragraph No.12 of the judgment under review, however, once again maintains the order of the Collector. In these *7* wp.1177.1178.11.sxw circumstances, there is no application of mind as to whether, the lands were under lawful cultivation on the appointed date or not. Mr.Dhond submits that the difference between the definition of terms “forest” and “private forest” and result of vesting has not been noted by the Tribunal. While definition of “private forest” is referring to the lands in respect of which a notice under Section 35(3) of the Indian Forest Act, 1927 has been issued, but excluding therefrom an area of 0-02-0 hectors as specified by the Collector. Upon vesting the right, title and interest of the owner or any person other than the Government subsisting in the forest on the appointed date, is deemed to have been extinguished. However, this provision, namely, Section 3(1) is subject to section 3(2) of the Private Forests Act. If Section 3(2) has been pressed into service and its ingredients are satisfied, then, it is clear that sub-section (1) of Section 3 would not apply. There are only two contentions, namely, how much extent of land comprised in forest as is held by an occupant or tenant and is lawfully under cultivation on the appointed day and is not in excess of the ceiling area provided by section 5 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, then, to that extent there is no vesting. Once there is no vesting of the land to this extent and which has been demonstrated by the contents of the report, then, the entire land of the Petitioner ought to have been excluded. That having not been done, the impugned orders suffer from an error apparent on the face of record. 11 Mr.Dhond submits that importance of the circular dated 03.01.1978 has been emphasized in the order passed by this Court in Writ Petition No.324/1998. The inquiry was ordered in terms of this circular. The inquiry should have been conducted by the Collector in terms of this circular. However, the Collector has discarded the report by observing that *8* wp.1177.1178.11.sxw the Village Committee consists of three members, namely, Sarpanch, Circle Officer and Range Forest Officer/Forester and the Village Committee may have drawn a panchanama but did not bear the signature of Range Forest Officer/Forester. Mr.Dhond submits that merely because the incumbent at the relevant time did not sign the report, does not mean that the entire report has to be discarded. Ultimately, the forest area has to be determined. The forest area has been determined and the contents of the report are clear. By discarding them, the Collector, as also, the Tribunal committed an error apparent on the face of record and the findings are vitiated by perversity. It is contended that the report being not signed by the Range Forest Officer, does not mean that the inquiry itself was not held or that there was no Panchanama drawn. If there is evidence of site visit, inspection of crops and making of panchanama, then, the entire land should have been excluded. Mr.Dhond also disputes the issuance of notice under Section 35(3) of the Indian Forest Act, 1927. He submits that the predecessor-in-title of the Petitioner had never received any such notice. There is no proof of its issuance either. The original notice is still in the file and therefore, it has not left the office of the Conservator of Forest. If it was not at all issued and that is the only inference which can be drawn if the original notice is available in record, then, the land cannot be termed as private forest. For all these reasons, Mr.Dhond prays that, both orders be quashed and set aside. 12 On the other hand, Mr.Patil, learned Government Pleader appearing for the Respondent Nos.1, 3 and 4, submitted that the affidavit in reply filed by the Respondents in this Writ Petition would falsify each of the contentions of Mr.Dhond. Mr.Patil, firstly, submits that there is an inadvertent error in the affidavit inasmuch as the statement therein that *9* wp.1177.1178.11.sxw the notice was received by Yashwant Randive and signature of Randive appears in the record is incorrect. The name of Randive has been inserted in the said document by the officer of the Department. However, that does not in any manner affect the case of the Respondents throughout, namely, that the notice was issued. The issuance of notice is clear from the original record. There is no dispute which has been raised either by Velankar or Randive that the lands are not private forest. It was never their case that they have not received any notice. In fact the notice was issued in the year 1962 to Velankar and finding some error therein it was withdrawn. When the notice was issued in the year 1964, Velankar had already transferred the said lands in favour of Randive. It is never case of Randive that such notice was not received. Mr.Patil submits that what is available in file is a printed copy of the notice in which particulars have been filled in with regard to the subject lands. However, the register would show a serial number and the date of issuance of notice. In such circumstances, the argument that the notice under Section 35(3) of the Indian Forest Act, 1927 was never issued, is contrary to the record and not well founded. 13 As far as the claim that the lands were under lawful cultivation is concerned, Mr.Patil submits that the report of the Village Committee is dated 31.01.1979 and that is based on the inspection carried out preceding the said date. What the Village Committee was called upon to inquire and to report, is the position as on the appointed day, namely, 30.08.1975, whether, on that day, the lands are in lawful cultivation. There is nothing in the documents to suggest that the lands were under cultivation on the appointed day. Further, the report is not at all authentic because it is clear that the same is not signed by all members of the Committee. The Range Forest Officer has not signed the same. Even the *10* wp.1177.1178.11.sxw Panchanama has not been signed by the said officer. In such circumstances, no evidentiary value attaches to the said report and it could not be relied upon. That has been rightly discarded by the Collector. In such circumstances and when the persons who claim ownership rights in the property, seek to transfer the same only when they received the notice under the Indian Forest Act, 1927; would go to show that the Petitioner has, with open eyes and knowing fully well the status of the lands, entered into agreement for sale and acquired the rights. The lands have been acquired subject to the provisions of the Private Forests Act. In such circumstances, section 3(1) of the Act would apply with full force and the petition deserves to be dismissed. 14 In the light of the rival contentions, on the earlier occasion I had called for an affidavit from the Respondents and also directed them to place the original record for my perusal. The record has been perused after the same was inspected by both counsel. An opportunity was given to the Petitioner to file a rejoinder affidavit or to place additional affidavit. The Petitioner has availed of this opportunity and upon inspection, filed the additional affidavit. 15 At this stage, it must be noted that Mr.Patil in all fairness has clarified that the statement in the affidavit filed on behalf of the Respondents and affirmed by Mr.Deepak Atmaram Shirodkar, Assistant Conservator of Forests, Alibag, contains factually erroneous statement at paragraph-4 running page-182. Mr.Patil clarifies that there is no acknowledgment given by the said Randive. A copy of the notice that is annexed at Exhibit-1 to this affidavit, does not contain the acknowledgment, but the name of Randive has been written by the *11* wp.1177.1178.11.sxw departmental officer. 16 In the light of this clarification, it is not necessary to decide the controversy about the notice having been received by Randive or not. 17 The Private Forests Act is an Act to acquire the private forests in the State and to provide for certain other matters. 18 In the decision reported in 2008(3) Bombay Case Reporter 408 (Oberoi Constructions Private Limited and others v/s State of Maharashtra and others), delivered by a Division Bench of this Court to which I am also a party, the Division Bench was considering some what identical controversy insofar as the issuance of notice is concerned. After noting the rival contentions and the object and purpose of the Private Forests Act, this is what is held in this decision in paragraphs 120, 121, 122, 123, 124 and 125:- “120. It is urged that the words “or land” were deleted and that is done prior to the Private Forest Act coming into force. However, it is pertinent to note that sections 34A, 35, 36, 36-A – 36C and 37 have been repealed by Maharashtra Act 29 of 1975. Section 4 of the Maharashtra Act 14 of 1978 re-enacts the Repealed Act (1927 Act) in Maharashtra for a limited purpose. In our view, chapter V of 1927 Act, which contains sections 34 to 37 has been deleted in the State of Maharashtra upon enactment of the Private Forest Act. The Private Forest Act is an Act to acquire private forest in the State and to provide for certain other matters. The statement of object and reasons of the Private Forest Act reads thus: “WHEREAS the forest land in the state in inadequate; AND WHEREAS the private forest in the State is generally in highly degraded and over exploited state and is adversely affecting agriculture and agricultural population; *12* wp.1177.1178.11.sxw AND WHEREAS it is, therefore, expedient to acquire private forests in the State of Maharashtra generally for conserving their material resources and protecting them from destruction or over exploitation by their owners or promoting systematic and scientific development and management of such forests for the purpose of attaining and maintaining ecological balance in the public interest, for improving the socio economic conditions of the rural population, and particularly of the adivasis and other backward communities who generally live in forest areas, for developing as the forest suitable for the purpose, for assigning a part of the private forest to the rural community; for controlling the soil erosion both in the forest areas and in the lower level agricultural lands, for conserving soil moisture for improvement of the water regime and raising the water table, for retarding the siltation of dams and tanks, for distribution of forest produce for the common good and preventing the concentration of forest wealth to the common detriment for distribution of the mature exploitable forest produce as best to subserve the common good, for promoting employment opportunities based on forest, for meeting the requirements of forest produce including fire wood with a view inter alia to decrease the dependence on cow dung, and in particular for afforestation of private forest wherever feasible on scientific lines, and thereby create conditions for the preservation of soil, conservation of water, prevention of erosion of soil and for improvement of land and underground water resources to the best interest of agriculture and agriculturists in such private forests and other lands in the State, and for undertaking schemes (for such purposes.) ; AND WHEREAS it is also expedient to provide that in the case of owners of private forests (other than those whose lands were used for extracting minor minerals such as stone quarries) whose total holdings of lands became less than twelve hectares the appointed day on account of acquisition of their forest lands under this Act, or whose total holding of lands was already less than twelve hectares on the day immediately preceding the appointed day, the whole or the appropriate portion of their forest lands so acquired shall be resorted to, and revested in, *13* wp.1177.1178.11.sxw them, so that their total holdings of lands may be twelve hectares or less, as the case may be, and they may be able to continue to earn their livelihood from such lands; and to provide for certain other purposes hereinafter appearing. It is hereby enacted in the Twenty Sixth year of the Republic of India as follows:-” Thus, the Private Forest in the State being in degraded and over exploited state, which was adversely affecting the agriculture and agricultural population, so also for the purpose of conservating the material resources and protecting them from destruction and from over exploitation by the owners, that, it became necessary to enact the Private Forest Act. Further, promotion of systematic and scientific development and management of the private forest and forest land in the State became necessary. This is an act for the purpose of attaining and maintaining ecological balance in the public interest. It is for improving of socio economic conditions of the rural population and particularly the Adivasis and other backward communities who generally live in forest area. Thus, public purpose that has to be achieved resulted in Private Forest Act being enacted. It is sub-serving the larger public interest. At the same time, the owners of the private forest, whose total holding of land became less than 12 H on the appointed day on account of acquisition of their forest land under the Private Forest Act, have been carved out so that their total holdings being less they should be able to continue to earn their livelihood from such land. This can be done by restoring to them the whole or appropriate portion of their forest land. They will have to re-vest in them. This would indicate that the Act contemplates acquisition of the lands which are private forests. They are not of public ownership. The forest privately owned had to be also protected and preserved for the purposes aforesaid. To achieve that object