hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL SIDE WRIT PETITION NO. 283 OF 2009 Ozon Land Agro Pvt. Ltd. And Anr. ... Petitioners Versus State of Maharashtra and Ors. ... Respondents Mr. Iqbal Chagla, Sr. Counsel with Mr. J. Reis, Mr. Riyaz Chagla and Mr. A.S. Kamat i/by Kartikeya Associates for Petitioner. Mr. D.A. Nalawade, Government Pleader for Respondents. Mr. Gautam Patel i/by Jayakars for Applicants/Interveners. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : FEBRUARY 18, 2010 P.C. The Petitioner in this petition has pressed only for Prayer Clause (c) in the petition which reads as under : “issue a Writ of Mandamus or a Writ in the nature of Mandamus/Order or Direction directing the Respondents to rectify the land revenue records in respect of the said property including deletion of the name of Respondent No. 1 as the owner of the said property and declare the said property as private agricultural property not vested in Respondent No. 1 as forest land either under Indian Forest Act, 1927 or Maharashtra Private Forest (Acquisition) Act, 1975 or Forest Conservation Act, 1980 or any other law or act relating to Forest; “ At the hearing of this petition, both the parties have argued the matter extensively including the Intervenor Bombay Environment Action Group which was also heard. The learned counsel for the Petitioners also drew our attention to the fact that even if the alternative remedies are available, this court should exercise its writ jurisdiction and for that purpose placed reliance on the judgment of the Supreme Court in Whirlpool Corporation Versus Vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1 and more specifically para 15 thereof which reads as under : “Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” On behalf of the State Government, it is pointed out that admittedly the land is a private forest and considering the provisions of the Maharashtra Private Forest Acquisition Act, 1975 hereinafter referred to as the said Act, the said forest vests in the Government on the coming into force of the said Act. The leaned counsel also placed reliance on the panchanama of taking possession dated 18.11.1975 to show that the possession of the land was taken under the provisions of the Maharashtra Private Forests Act, 1975. Our attention is also invited to what is described as Golden Register in which this land is shown as Survey No. 229 of the Forest Division, Wadgaon range and further the said document refers to notification under Section 35(3) of the Indian Forest Act. On behalf of the Intervenor, the learned counsel draws our attention to the various orders passed by the Hon’ble Supreme Court and points out that the matter is now seized by the Central Empower Committee. I t is further pointed out that if the contention of the Petitioner is that the land is not a forest and is not covered by the provisions of the aforesaid Act, the remedy to the party is to move under section 6 of the Maharashtra Private Forest Acquisition Act, 1975 considering the Full Bench Judgment of this court reported in 1976 79 BLR 499. On behalf of the Intervenor learned counsel also draws our attention to the fact that the matter is seized by the Hon’ble Supreme Court and by the Central Empowerment Committee which has been appointed to go into the issues and consequently this court ought not to go into these aspects. In our opinion, considering the prima facie documentary evidence on record and the definition of forest under section 2(f) of the Act as also section 3 of the Act, the panchanama of taking possession and the Golden register, there is prima facie evidence to show that the land is forest and is vested in the State Government by operation of law. It is no doubt true that the some documentary evidence was shown to us about taking possession of the land in excess under the Agricultural Ceiling Act. The land ins so far as agricultural is concerned, as per the record itself is hardly 80 acres out of 800 acres of land. In our opinion, therefore, considering these facts and circumstances and as the matter involves disputed question of fact and more so as the declaration is sought for in terms of Prayer (c) this will not be a fit case for this court to exercise its extra ordinary jurisdiction. It will be open to the Petitioners to take such steps to which they are entitled to in law. We make it clear that the observations are based on prima facie material on record and the refusal to entertain the petition, will not stand in the way of the Petitioner pursing the alternative relief that they have and or any other remedy. With the above observations, Petition disposed of. (J.H. BHATIA,J.) (F.I. REBELLO,J.)