Case: State of Maharashtra Vs. Maharashtra Land Development Corporation

water supply in springs, rivers and tanks, maintenance, increase and distribution of the supply of fodder, leaf manure, timber or fuel, maintenance of reservoirs or irrigation works, protection of roads, bridges, railways and other lines of communication and preservation of the public health, etc. Under subsection (3) of section 35 it is provided that no notification under sub clause (1) shall be issued until after a show cause notice to the owner of such forest has been issued and until his objections, if any are heard and considered by Government. Section 38 provides for protection of private forest at the request of the owners and states that upon a request in that behalf being made by the owners the State Government can apply the provisions of the Forest Act to such private forest by means of a notification. If sub-clauses (i) to (iv) of section 2 (f) are read in the light of the aforesaid provisions of sections 34-A, 35 and 38 of the forest Act, 1927, it will appear clear that these sub-clauses bring within the definition of private forest four types of land in respect of which action has been taken by the State Government under sections 34-A, 35 (1), 35 (3) and 38 of the Forest Act. Sub-clause (i) brings within the definition of private forests any land declared before the appointed day to be a forest under section 34-A of the Forest Act and sub-clause (ii) brings any forest in respect of which a notification under section 35 (1) of the Forest Act has been issued immediately before the appointed day within the category of private forest. Both the sections viz. 34-A and 35 of the Forest Act have been repealed with effect from 30th august, 1975 after the coming into force of the Acquisition Act and in view of such repeal no fresh declaration by issuing a notification under section 34-A or fresh issuance of a notification under section 35 (1) is now possible. As regards action taken either under section 34-A or under section under section 35 (1) prior to 30-8-1975 our attention was not drawn to any defective declaration or defective notification issued under either of these provisions. Moreover, it would be reasonable to assume that such prior declaration under section 34-A was in respect of such land as possessed the essential attributes of a forest. Prior action under section 35 (1) must have been merely regulatory or prohibitory of certain acts specified in the section and that too in respect of forest inasmuch as the power to issue such regulations or prohibitions is confined to forests. No grievance can be made with regard to action taken by means of a notification under section 38 of the Forest Act in respect of land mentioned in sub-clause (iv), inasmuch as, such action is taken with a view to formation or conservation of forest over such land at the request of the owners of land. It is thus clear that sub-clauses (i), (ii) and (iv) of section 2 (f) deal with declared, adjudicated or admitted instances of forests. Sub-clause (iii) of section 2 (f) no doubt seeks to cover land in respect of which merely a notice has been issued to the owner of a private forest under section 35 (3) and his objections may have remained unheard till 30-8-1975 as section 35 has stood repealed on the coming into force of the Acquisition Act. Here also, as in the case of owners of land falling under sub-clause (iii) of section 2 (c-i), his objections, if any, including his objection that his land cannot be styled as forest at all can be heard and disposed of under section 6 of the Acquisition Act, and this position was conceded by Counsel appearing for the State of Maharashtra. Sub-clause (v) includes within the definition of private forest the interest of another person who along with Government is jointly interested in a forest, while sub-clause (vi) includes sites of dwelling houses constructed in such forest which are considered to be necessary for the convenient enjoyment or use of forest and lands appurtenant thereto. In our view, the artificiality involved, if any, in the definition of private forest in section 2 (f) is indeed of a very minor nature and does not introduce anything over which the State legislature has no competence. The contention of Mr. Singhvi and Mr. Paranjpe that under the artificial definitions even lands which cannot by any stretch of imagination be regarded as forest in its normal or natural connotation have been brought within that concept as well as their apprehension that lands which may be barren tracts where quarrying operations may be carried on may be included in the artificial definitions under the power of declaration conferred on the State without any hearing are misconceived. In the first place, the artificial parts of the two definitions of forest and private forest do not do anything of the kind as suggested and secondly under section 6 of the Act owners of such land which is sought to be declared as forest would have an opportunity of raising objections to the proposed declarations and of satisfying the Government that their lands are not and cannot be treated or declared as forests. (104) IN our considered opinion, the ratio laid down in Janu Chandra Waghmare has no application to the facts of the case. The said decision, therefore, does not take the case of the first respondent Corporation anywhere. On various grounds discussed by us in earlier part of the judgment, the Maharashtra revenue Tribunal has committed an error of law apparent on the face of the record by holding that the land bearing Survey No. 345-A of village Dahisar was neither forest nor private forest and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds](80) IN our considered opinion, the submission on behalf of the petitioners has force that the direction issued by the Honble Apex Court have not been carried out and observed by the Tribunal in their proper spirit. Though the Tribunal was aware of the directions of the Apex Court and it observed that it must bear in mind the evidence which has been pinpointed by the Honble High Court in considering this matter such material has not been considered in its proper perspective. It also clearly appears to us that the approach of the Tribunal is not in consonance with law. The order passed by the Tribunal in earlier matter was set arise by this Court and the writ petition was allowed. The order passed by this Court was again set aside by the Apex Court and the matter was remanded to the Tribunal with a direction to consider the matte afresh. In spite of the clear direction of the Supreme Court to that effect, the Tribunal, in the impugned judgment, observed that inspite of opportunity extended by the Supreme Court the state did not produce any material or additional evidence on record. It was the Corporation which had adduced lot of documentary evidence(83) MR. Sathe, learned Counsel, no doubt, contended that the description in their conveyance was borrowed from the original document in which the property was traditionally described as forestfact and in reality, however, it was not forest land(84) WE are unable to uphold the contention. As already observed earlier, the entire land of Survey No. 345 was forest. It was shown as jungle. In revenue record also, the said fact was reflected and the description found place in the Conveyance Deed of 29/03/1975. It, therefore, cannot be said that the description was traditional as contended by the learned Counsel85) THE Counsel also contended that in the mutation entry, the land in possession ofn was initially shown as forest land but thereafter the said entry was deleted and from1 onwards, the entry quarry and grass was made in 7/12. To us, however, the above circumstances also would not carry the matter further in the light of the decision of the Supreme Court in T. N. Godavarman Thirurmulkpad(86) THE Endeavour of the learned Counsel for the respondent is that the land does not fall within the definition of forest or private forest. It is also not natural forest. It is also not forest in its dictionary meaning nor the land is lying within or linked to forest nor it is a part of National Park nor it is suitable for forest produce and hence cannot be treated as forest(87) IN our view, however, considering the provisions of the relevant statutes and the decisions which we have already referred earlier, and for protecting and safeguarding SGNP Division, orders were passed from time to time prohibiting and preventing quarry operations and commercial activities and in the said perspective, the question has to be decided(88) WE are also of the view that some of the facts and circumstances considered and taken into account by the Tribunal cannot be said to be germane or relevant. For instance, the Tribunal in the impugned order conceded that the land was described as forest (jungle) in all records. It, however, proceeded to state that the contention of Mr. Sathe, learned Counsel for the Corporation that in old days of the past, vast expanses of lands in several parts of Bombay came to be recorded as jungles cannot be ignored. There is nothing on record to substantiate or. Countenance such a conclusion as has been done by the Tribunal. If the case of the respondent herein was that the expression jungle was loosely used or that inspite of the fact that a particular land was not forest or jungle, it was described as such, it was on him to adduce evidence to that effect on the basis of which a finding can be reached by the tribunal. In absence of any material whatsoever, to record that such an expression was loosely used and the land recorded to be jungle cannot be said to be jungle is in our opinion, not legal, valid and in consonance with law89) SIMILAR is the factum regarding withdrawal from acquisition of land bearing Survey No.A in the land acquisition proceedings. Admittedly, the entire Survey No. 345 was forest. Survey No.A i. e. part of Survey No. 345 admeasuring 209 acres and 25 guntkas was withdrawn from acquisition by an order passed by Special Land Acquisition Officer, National Park, Borivli on 15/09/1973. The said action was taken as the land was not found convenient and suitable for the purpose for acquisition. In our view, however, this has nothing. to do with the nature and character of land. A piece of land may not be forest or private forest and yet it may be required under the Land Acquisition Act for a public purpose. On the other hand, a piece of land may be forest or private forest and yet it may not be convenient or suitable for acquisition for a public purpose and hence, may not be acquired. Acquisition of land has something to do with public purpose and acquisition of land under the relevant statute. It has nothing to do with the nature of character of land. Hence, to say that the land was not found to be convenient, appropriate or suitable for acquisition for public purposes and, hence, withdrawal notification was issued does not make forest or private forest land to be(90) LIKEWISE, reliance on two letters/communications dated 12/01/1972 by thel Forest Officer, National Park, Borivli to the conservator of Forest, Thane Circle and a letter dated 26/10/1975 by thel Forest Officer, National Park, Borivli tol Officer, Bombay that the land was not suitable for the purpose of raising trees or forest plantation, etc. and it should be deleted from acquisition has no relevance to the character of the land(103) STRONG reliance placed by Mr. Sathe on the Full Bench decision in Janu chandra Waghmare, in our opinion, will not help the respondent in the case on hand(104) IN our considered opinion, the ratio laid down in Janu Chandra Waghmare has no application to the facts of the case. The said decision, therefore, does not take the case of the first respondent Corporation anywhere. On various grounds discussed by us in earlier part of the judgment, the Maharashtra revenue Tribunal has committed an error of law apparent on the face of the record by holding that the land bearing Survey No.A of village Dahisar was neither forest nor private forest and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside.