Case: Ozone Land Agro Private Limited Vs. State of Maharashtra &amp; Others

hesitation in coming to the conclusion that the issue involved in this case is no loner res-integra and is squarely covered by the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (2014) 3 SCC 430 ) (supra).11. For the aforesaid reasons, the entires made in the revenue record by the revenue authorities on the basis of notices which were issued under section 35(3) of the Indian Forest Act are set aside. It is clarified that though these notices were issued under section 35(3) since there being no final Notification issued under section 35(1), provisions of section 2(f)(ii) and 2(f)(iii) of the Maharashtra Private Forests (Acquisition) Act, 1975 would not apply to the facts of the present case and these lands, therefore, would not be deemed to be the forest lands, unless the procedure prescribed under the Act is followed which, admittedly, has not been followed in this case. It has to be remembered that the State has a right to acquire the land or declare that the land vests in the State Government. Such a right can be exercised only after the procedure which is prescribed under the Act is followed. It is no doubt true that the question of environment is a burning issue and has to be taken into consideration. However, at the same time, rights of the citizens cannot be taken away without following the due process of law. In the present case, after 1956, no steps have been taken by the State Government and, therefore, we are of the view that citizens cannot be deprived of the rights in respect of the property owned by them.11. In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In the Affidavit-in-reply which has been filed by Respondent No.5 Conservator of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.12. Respondents have relied on the Entries made in what is called Golden Register in support of their contention that the notices have been issued. However in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), mere issuance of notice is not sufficient and therefore merely by issuance of notice, the land could not be said to be deemed forest under Section 2(f)(iii).13. The Apex Court in its judgment in Godrej and Boyce Manufacturing Company Limited (supra) while overruling the judgment in Chintamani Gajanan Velkar vs State of Maharashtra and Others (2000) 3 SCC 143 ) has observed that this fine distinction which existed on proper reading and analysis of Section 35 was lost sight of by the Bombay High Court and the Apex Court in its earlier judgment in Chintamani (supra).14. This being the legal position, when the matter was filed before this Court, the issue which has now been settled was not settled and, therefore, Division Bench of this Court relegated the Petitioners to exhaust the alternative remedy of filing the appeal before the Sub-Divisional Officer since the question whether notice was issued or not was a disputed question of fact.15. After the judgment was delivered in Godrej and Boyce Manufacturing Company Limited (supra) by the Apex Court and in Satelite Developers Limited (supra) by this Court, Petitioners have now approached this Court again, in view of the settled position in law which position is settled after the Division Bench of this Court had directed the Petitioners to file an appeal. It is, therefore, rightly submitted by the learned Senior Counsel appearing on behalf of the Petitioners that in view of the settled position in law which was settled after the appeal was filed before the Sub-Divisional Officer, Petitioners, again, have a right to approach this Court and seek an appropriate order and direction for quashing the said Mutation Entries. The learned Senior Counsel appearing on behalf of the Petitioners, in our view, has rightly submitted that in view of the stand which has been now taken by the State Government in their affidavit-in-reply, it appears that despite the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), State is still sticking to their old stand and, therefore, no fruitful purpose would be served in pursuing the appeal which is pending before the Sub-Divisional Officer.16. We find considerable force in the submissions made by the learned Senior Counsel appearing on behalf of the Petitioners. Normally, in such cases, when the Petitioners had approached this Court and this Court had relegated the Petitioners to exhaust the alternative remedy, this Court would not have entertained the Petition again and would have asked the Petitioners to exhaust that remedy first as per the directions which were given in the judgment of this Court dated 18/02/2010 passed in Writ Petition No.283 of 2009. However, in the peculiar facts and circumstances of this case and more particularly in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) which has finally settled the issue, we find that it would be futile to again ask the Petitioners to go back to the Sub-Divisional Officer, who, apparently, in view of the affidavit-in-reply filed by the Respondents, would continue to take the same stand. We are of the view that, normally, State is expected to take a fair and reasonable stand and follow the law which is laid down by the Apex Court which is binding on all the parties in the country. However, we are surprised by the fact that same stand which was earlier taken in Chintamani is continued to be taken here in the reply filed by the Respondents to this Petition.17. Both the questions in para 4 above are accordingly answered in the negative.

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

Explanation:
1[ds]11. In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In thewhich has been filed by Respondent No.5Conservator of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.12. Respondents have relied on the Entries made in what is called Golden Register in support of their contention that the notices have been issued. However in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), mere issuance of notice is not sufficient and therefore merely by issuance of notice, the land could not be said to be deemed forest under Section 2(f)(iii).In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In thewhich has been filed by Respondent No.5r of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.The Apex Court in its judgment in Godrej and Boyce Manufacturing Company Limited (supra) while overruling the judgment in Chintamani Gajanan Velkar vs State of Maharashtra and Others (2000) 3 SCC 143 ) has observed that this fine distinction which existed on proper reading and analysis of Section 35 was lost sight of by the Bombay High Court and the Apex Court in its earlier judgment in Chintamani (supra).14. This being the legal position, when the matter was filed before this Court, the issue which has now been settled was not settled and, therefore, Division Bench of this Court relegated the Petitioners to exhaust the alternative remedy of filing the appeal before theOfficer since the question whether notice was issued or not was a disputed question of fact.15. After the judgment was delivered in Godrej and Boyce Manufacturing Company Limited (supra) by the Apex Court and in Satelite Developers Limited (supra) by this Court, Petitioners have now approached this Court again, in view of the settled position in law which position is settled after the Division Bench of this Court had directed the Petitioners to file an appeal. It is, therefore, rightly submitted by the learned Senior Counsel appearing on behalf of the Petitioners that in view of the settled position in law which was settled after the appeal was filed before theOfficer, Petitioners, again, have a right to approach this Court and seek an appropriate order and direction for quashing the said Mutation Entries. The learned Senior Counsel appearing on behalf of the Petitioners, in our view, has rightly submitted that in view of the stand which has been now taken by the State Government in theirit appears that despite the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), State is still sticking to their old stand and, therefore, no fruitful purpose would be served in pursuing the appeal which is pending before theOfficer.16. We find considerable force in the submissions made by the learned Senior Counsel appearing on behalf of the Petitioners. Normally, in such cases, when the Petitioners had approached this Court and this Court had relegated the Petitioners to exhaust the alternative remedy, this Court would not have entertained the Petition again and would have asked the Petitioners to exhaust that remedy first as per the directions which were given in the judgment of this Court dated 18/02/2010 passed in Writ Petition No.283 of 2009. However, in the peculiar facts and circumstances of this case and more particularly in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) which has finally settled the issue, we find that it would be futile to again ask the Petitioners to go back to theOfficer, who, apparently, in view of thefiled by the Respondents, would continue to take the same stand. We are of the view that, normally, State is expected to take a fair and reasonable stand and follow the law which is laid down by the Apex Court which is binding on all the parties in the country. However, we are surprised by the fact that same stand which was earlier taken in Chintamani is continued to be taken here in the reply filed by the Respondents to this Petition.17. Both the questions in para 4 above are accordingly answered in the negative.