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

Brief facts which are relevant for the purpose of deciding this Petition are that one Gajanan Vishwanath Karve and members of his family were owners of the said land. It appears that the Petitioners entered into development agreement and/or Deeds of Conveyance with the said Karves and Power of Attorney was also given by the said Karves to the Petitioners. The Petitioners, after making inquiry, came to know that this land was declared as forest by the government authorities and therefore filed Writ Petition in this Court being Writ Petition No.283 of 2009, challenging the said Mutation Entries.6. Division Bench of this Court, however, held that the Petitioners have raised disputed question of facts and therefore directed the Petitioners to exhaust the alternative remedy which was available to them of challenging the said Entries before theOfficer, Taluka Mawal.7. Petitioners, being aggrieved by the said judgment and order passed by this Court dated 18/2/2010 in Writ Petition No.283 of 2009, filed Special Leave Petition (Civil) No.19347 of 2010 in the Apex Court. However, the said SLP was allowed to be withdrawn with liberty to approach the appropriate forum in accordance with law.8. Petitioners accordingly filed an appeal being RTS/733/2012 before theOfficer, Taluka Mawal. Despite the several applications being made by the Petitioners, the said appeal was not expeditiously disposed of and is still pending.

Reasoning: 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.